EvoPlus.com Advertising Services Terms and Conditions
These Advertising Services Terms and Conditions shall constitute a legally binding and enforceable agreement between you (hereinafter, "Advertiser") and EvoPlus.com, Inc. (hereinafter, "EvoPlus"), a Canadian corporation. By participating in EvoPlus's pay-per-click advertising services or other related services (the "Advertising Services"), Advertiser agrees to be bound by the terms set forth in these Terms and Conditions, the terms set forth on any corresponding Insertion Order, and all applicable policies and guidelines, including without limitation the EvoPlus Advertising Guidelines (collectively, as in effect from time to time, the "Agreement").
For the purposes of this Agreement: (i) "Advertisement" may include any Advertiser listing, Advertisement, content, Web site, material or other information submitted by Advertiser or on behalf of Advertiser for inclusion in the Advertising Services and accepted by EvoPlus; (ii) "Insertion Order" means a written insertion order or any online insertion order submitted by Advertiser and accepted by EvoPlus. Notwithstanding the foregoing, in the event that any provision of any corresponding Insertion Order expressly conflicts with any provision of these Terms and Conditions, the specific provision of the Insertion Order shall prevail to the extent there is an express conflict.
Payment Terms and Non-Refundable Fees:
In the event that any of the payment terms of an Insertion Order, if applicable, are different than the terms set forth in these Terms and Conditions, the payment terms and conditions set forth in the Insertion Order shall apply. Advertiser agrees that any payment depending on the EvoPlus Advertising Service selected by Advertiser is nonrefundable.
Advertiser agrees that EvoPlus will be solely responsible for tracking and calculating click-throughs ("CTs") delivered, the applicable CT price(s) and all other traffic measurements and data, and Advertiser understands and agrees that such measurements and data will be the only and definitive measure thereof. Due to the various frequencies of search engines and directories refreshing their indexes, from time-to-time campaign overruns can occur. Overruns, not to exceed ten percent (10%) of the amount ordered, as measured on a calendar monthly basis, shall constitute delivery of valid and authorized CTs under this Agreement, and Advertiser shall be obligated to make payment up to the aforementioned 10% overrun maximum. Overruns will be billed at the applicable CT price(s) for the number of CTs delivered. EvoPlus reserves the right to use credit reporting agencies or other means to verify and evaluate the credit information of Advertiser. Advertiser agrees to provide the necessary information and consents to EvoPlus (or its third-party designees) for the purposes of obtaining any such reports or information.
In addition, any information or data provided by Advertiser to EvoPlus may not be processed on a real-time basis and may be subject to the latency of the Internet, the EvoPlus systems and network and relevant third party distribution partners and search engines. Furthermore, the effectiveness of all information and data (including any and all amendments or supplements thereto) provided by Advertiser to EvoPlus may, in the discretion of EvoPlus, be subject to the prior approval and acceptance of EvoPlus.
Deposit and Credit Card Terms :
Advertiser must maintain a deposit or a revolving Auto-Renew deposit account with EvoPlus for each of its selected Advertising Services. In the event Advertiser has elected to pay EvoPlus by credit card, Advertiser agrees to authorize EvoPlus to charge its credit card for such payments and for any amounts owed under this Agreement. If EvoPlus is unable to collect owed amounts from Advertiser's credit card, Advertiser shall pay to EvoPlus an insufficient funds fee equal to five percent (5%) of the total amount due.
If Advertiser chooses to participate in one of the Advertising Services using the Auto-Renew payment option, Advertiser agrees to allow EvoPlus to automatically charge its credit card the Auto-Renew payment amount selected by Advertiser (the "Auto-Renew Amount") whenever Advertiser's account has less than twenty-five percent (25%) of the total Auto-Renew Amount remaining. Advertiser agrees that its authorization to allow EvoPlus to charge its credit card the Auto-Renew Amount whenever Advertiser's account has less than twenty-five percent (25%) of the total Auto-Renew Amount remaining, is valid until the termination of this Agreement or until the expiration of Advertiser's credit card.
Failure to Promptly Pay Amounts Owed:
In addition to all applicable fees contained herein, in the event that EvoPlus is unable to charge Advertiser's credit card, there is a chargeback for any reason, or Advertiser otherwise fails to promptly pay any applicable charge, it will be subject to a late payment charge equal to the lesser of: (i) one and one-half percent (1.5%) per month accruing from the charge date or invoice date as applicable, or (ii) the maximum amount allowed by applicable law. In addition to the foregoing, EvoPlus may in its sole discretion immediately suspend or terminate Advertiser's participation in any or all of the EvoPlus Advertising Services. Termination of the Agreement and/or payment of late payment charges shall not prejudice any other rights or remedies that may be available to EvoPlus with respect to nonpayment or late payment of applicable fees.
From time to time, at its sole discretion, EvoPlus may reward loyal advertisers with placement credits to their account. Such placement credits may result in increased CTs. In the event that Advertiser is rewarded such placement credit, Advertiser will not pay any increased cost-per click unless Advertiser specifically elects to change the cost-per-click on selected keywords. An Advertiser receiving a placement credit may, however, receive increased click-through traffic as a result of this preferred placement and would then be obligated to pay additional charges to their account.
If Advertiser signs up with EvoPlus under any special promotion, Advertiser agrees to the terms set forth under the applicable promotional rate. Once the promotion has expired, the standard click-through, impression and campaign rates will apply, as the case may be. Any account credits to Advertiser provided by EvoPlus on a promotional basis, including, without limitation, incentive, referral, loyalty or reward credits or bonuses, shall be non-refundable and discretionary.
Advertiser agrees to notify EvoPlus within five (5) days after the end of the month of any discrepancies in Advertiser's account, including charges, CT discrepancies or other performance issues. In the event that Advertiser does not notify EvoPlus within such five (5) day period after the end of the month, such claims or disputes will be waived and any charges will be final and not subject to dispute. Advertiser further agrees that it will be responsible for all reasonable collection expenses (including attorneys' fees) incurred by EvoPlus to collect any payments owed by Advertiser to EvoPlus.
For purposes of this Agreement, all Web sites that EvoPlus owns, operates or hosts are referred to herein as "EvoPlus Web Sites". Advertiser is authorized to access the EvoPlus Web Sites solely to manage Advertiser's account(s). Advertiser agrees not to disseminate any information therein. Advertiser further agrees not to use any automated means, including without limitation, agents, scripts, robots, or spiders to access any EvoPlus Web Site(s), except those automated means expressly made available by EvoPlus, if any. Without limiting the foregoing, Advertiser agrees not to interfere with the proper working of the EvoPlus Web Sites.
Ownership of Non-Advertiser Property:
Title and full ownership rights in and to the EvoPlus Network (as defined herein), together with any and all ideas, concepts, computer programs and other technology supporting or otherwise relating to EvoPlus's operation of the EvoPlus Network and Web site(s) (collectively, the "EvoPlus Materials"), shall remain at all times solely with EvoPlus and/or with the respective manufacturer or author. Advertiser acknowledges that it has not acquired any ownership interest in the EvoPlus Materials and will not acquire any ownership interest in the EvoPlus Materials by reason of this Agreement.
Advertiser Representations and Warranties:
Advertiser represents and warrants to EvoPlus that for the term of this Agreement:
This Agreement constitutes a valid and binding agreement enforceable against Advertiser in accordance with its terms.
Any information or data that Advertiser (including its agents or representatives) has entered or will enter under any Advertising Service is and will be both accurate and complete.
Advertiser is the authorized owner or representative of the Web site(s) for which keywords are selected or search listings are requested or an Advertisement has been submitted.
The keywords selected by the Advertiser, Advertisements, and the content and information in or associated with the Advertisement of the Advertiser's Web site(s) for which links are requested, and Advertisements submitted by Advertiser:
Advertiser further agrees to perform as follows:
Advertiser will not hold EvoPlus or its affiliates liable or responsible for the activities of visitors who come to Advertiser's Web site(s) through a link provided from the EvoPlus Network.
Advertiser agrees that it is solely responsible for the development, maintenance and operation of the Advertiser Web site(s) and for all content and other materials that appear on, and all visitors to, the Advertiser Web site(s) from time to time.
Advertiser is responsible for the content of each Advertisement, however, EvoPlus reserves the right to edit, reject or remove any Advertisement at any time, for any reason, in its sole discretion.
If Advertiser sells or promotes alcohol or tobacco products, or other age restricted products and/or services, Advertiser will: (i) have age verification on its sites' home page and in the sales process in compliance with all applicable laws and regulations; and (ii) shall not offer such products and/or services in jurisdictions in which they are prohibited or are in any way restricted.
Advertiser shall comply with the terms and conditions, rules, guidelines and policies (collectively, the "Rules") in effect with respect to the Advertising Service used by Advertiser, as such may be posted on the EvoPlus Web site (www.EvoPlus.com or such successor URL as EvoPlus may subsequently designate) from time to time. During the term of this Agreement, Advertiser shall have the affirmative obligation to monitor the Rules to comply with any changes or amendments thereto.
Advertiser Indemnification Obligations:
Advertiser agrees to indemnify, defend and hold harmless EvoPlus, its distribution partners, its licensors and licensees and affiliated companies, and any of their officers, directors, employees,representatives and agents, from and against all claims, actions, liabilities, losses, expenses, damages and costs (including without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (collectively being referred to herein as a "Claim") for, including without limitation, libel, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Advertisement, Advertiser's selected keywords, Advertiser's client's Web site(s) or contents therein, Advertiser's conduct, acts or omissions, or any alleged or proven breach by Advertiser of any term, condition, agreement, representation or warranty hereunder. EvoPlus will notify Advertiser of any claim, action or demand for which indemnity is required in the reasonable opinion of EvoPlus and will cooperate reasonably with Advertiser at Advertiser's expense. At the election of EvoPlus, Advertiser shall advance to EvoPlus amounts in satisfaction of such Claim, which EvoPlus may hold in escrow pending resolution of such Claim. The law firm Advertiser chooses to defend EvoPlus must be experienced in defending similar claims and will be subject to EvoPlus's approval, which will not be unreasonably withheld.
Advertiser may not settle any lawsuit or matter relating to the culpability or liability of EvoPlus without the prior written consent of EvoPlus. EvoPlus will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense. Without limiting any rights and remedies hereunder or under applicable law, EvoPlus shall have the right to set off any liability of Advertiser to EvoPlus with respect to a Claim against any amounts held on deposit with EvoPlus by Advertiser.
Limitation of Liability and Warranty Disclaimer:
Advertiser acknowledges and agrees that it will not hold EvoPlus liable for any errors in content, omissions, consequences, damages, costs, refunds or rebates of any kind arising from any interruption of service or other unavailability of the Internet or Web site in which the Advertisement is published for whatever reason. EvoPlus makes no representations or warranties relating to the results of Advertisement, including without limitation, the number of impressions or CTs such Advertisement will receive and any promotional effect or return on investment thereof. EvoPlus makes no guarantees regarding the accuracy, reliability or completeness of any usage statistics. In the event that EvoPlus fails to publish Advertisement or in the event of any other failure, technical or otherwise, of Advertisement to appear as provided in this Agreement, the sole liability of EvoPlus shall be limited to, at EvoPlus's option, either a pro rata refund to Advertiser of the fee paid, if any, or placement of Advertisement at a later time in a comparable position. In no event shall EvoPlus be responsible for any consequential, special, lost profits or other damages arising under this Agreement including, but not limited to, failure to timely publish Advertisement in accordance with the Agreement. Without limiting the foregoing, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action, fire, flood, earthquake, power failure, riot, explosion, labor or material shortage, carrier interruption of any kind or work slowdown.
EvoPlus MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE EvoPlus ADVERTISING SERVICE, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EvoPlus DOES NOT WARRANT OR GUARANTEE THAT THE EvoPlus ADVERTISING SERVICE OR OPERATION THEREOF WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET ADVERTISER'S REQUIREMENTS, AND EvoPlus SHALL NOT BE LIABLE FOR THE CONTENT OF ANY WEB SITES ON THE EvoPlus NETWORK. EvoPlus WILL NOT BE LIABLE FOR, OR CONSIDERED TO BE IN BREACH OF OR IN DEFAULT, ON ACCOUNT OF ANY DELAY OR FAILURE TO PERFORM AS ANTICIPATED BY THE PARTIES, INCLUDING, WITHOUT LIMITATION, A DELAY IN CHANGING A PRICE PER CLICK OR DAILY BUDGET, BY ADVERTISER, FAILURE TO INCLUDE ADVERTISEMENT OR LISTING, OR IF ANY OF EvoPlus'S ADVERTISING SERVICES BECOME INOPERABLE OR INCAPABLE OF PERFORMING AS INTENDED. EvoPlus WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, THE REJECTION OR REMOVAL OF ANY ADVERTISEMENT, OR ANY DELAY IN DISPLAYING OR THE FAILURE TO DISPLAY AN ADVERTISEMENT, EVEN IF AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EvoPlus'S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY ADVERTISER TO EvoPlus FOR THE ADVERTISEMENT WHICH IS THE BASIS OF LIABILITY OR THE AMOUNT PAID BY ADVERTISER TO EvoPlus IN THE LAST TWELVE (12) MONTHS, WHICHEVER IS LESS.
EvoPlus's Advertising Services are made available in connection with the EvoPlus Network, which is comprised of a number of authorized distribution partners (collectively, the "EvoPlus Network"). EvoPlus cannot guarantee inclusion in the results of any particular authorized distribution partner.
Under this Agreement, to the extent that Advertiser orders or requests Advertising Services hereunder, EvoPlus shall, in its sole discretion, have the authority to act as purchasing and/or paying agent on behalf of Advertiser with respect to any publication of the Advertisements within third party search engines or other properties or publications and bind Advertiser to the applicable terms and conditions as if Advertiser were party thereto. In such event, solely to the extent that Advertiser has not made payment to EvoPlus with respect to such amounts, Advertiser shall be the sole obligor for such amounts and shall make prompt payment of such amounts (and related costs) to the third party publisher. Advertiser acknowledges and agrees that Advertiser may be subject to collection directly by such third party publisher to the extent that Advertiser has not made payment with respect to such publication hereunder. Advertiser shall be responsible for any collection expenses incurred by such third party publisher, including without limitation, reasonable attorney expenses, late fees and penalties and other costs assessed by such third party publisher. Advertiser's payment obligations shall be subject to the terms of the applicable Insertion Order with regard to payments made by EvoPlus as paying agent.
Use of Submissions:
Advertiser irrevocably grants EvoPlus, its partners, licensees and any entities in the EvoPlus Network, the worldwide right to use, display and publish the Advertisement and any links to Advertiser's Web site(s) for the purposes of delivering the Advertising Services, including, without limitation, modifying it for the purposes of complying with display parameters or using it commercially and authorizing others to do so for purposes hereof. Advertiser further irrevocably grants EvoPlus the right to deliver and sublicense the use of the Advertisement to any authorized distribution partner that EvoPlus deems relevant to the distribution of the Advertisement. EvoPlus may modify or replace keywords based on quality search practices and industry standards, including without limitation, methodologies that correct misspellings, combine singular and plural terms and filter inappropriate terms. EvoPlus reserves the right to update and change these methodologies in its discretion.
Modification of Service:
EvoPlus reserves the right to redesign or modify the organization, structure or "look and feel" of the Advertising Services at any time without notice. EvoPlus may also at any time raise the minimum bid and monthly spending cap requirements, as well as the pricing terms for Advertisements distributed within the EvoPlus Network. Advertiser's continued participation in any EvoPlus Advertising Service following the posting of such changes on the Advertiser home account page, shall be deemed an assent to such changes.
Upon Advertiser's reasonable written request, EvoPlus will provide Advertiser usage statistics pertaining to the number of CTs; provided, however, that Advertiser may not distribute or disclose such usage statistics to any third party without EvoPlus's prior written consent.
Right to Reject:
In its sole discretion, EvoPlus may reject, cancel or remove all Advertisements, requested URL links, search terms, descriptions, banners and logos at any time and with or without notice.
Rules of Relevancy:
Advertiser agrees to submit only those keywords, search terms and descriptions to an EvoPlus Advertising Service that are relevant to Advertiser's Web site(s) in accordance with the EvoPlus Advertising Guidelines located at http://www.EvoPlus.com/guidelines.html or such successor URL as EvoPlus may subsequently designate. No refunds will be issued for charges incurred to any account as a result of submitting irrelevant words to one of EvoPlus's Advertising Services. Excessive violations of relevancy regulations may result in termination of Advertiser's account without refund for any charges already incurred. EvoPlus reserves the right to make changes to the content of any Advertisement (including but not limited to titles, descriptions, URLs or domains) at any time and without notice if said Advertisements do not comply with EvoPlus's relevancy standards set forth herein. In addition, EvoPlus reserves the right to include in each of Advertiser's keyword campaigns related search term combinations derived from the search terms and descriptions Advertiser submits to a EvoPlus Advertising Service.
During the term of this Agreement, and for a period of two (2) years following the termination of this Agreement, Advertiser will not use or disclose any Confidential Information of EvoPlus, except as provided herein. Advertiser acknowledges that if it breaches this Section, EvoPlus will have no adequate remedy at law available to it, will suffer irreparable harm, and will be entitled to equitable relief. "Confidential Information" includes (a) Advertisements, prior to publication, (b) the terms of any Insertion Orders, (c) any information disclosed to Advertiser by EvoPlus, (d) results or data relating to any EvoPlus Advertising Service or any service provided by EvoPlus and the related performance of such EvoPlus Advertising Service and (e) any proprietary information shared pursuant to this Agreement, including technology, process and know-how. The foregoing restriction does not apply to information that has become publicly known through no breach by a party, or has been: (i) independently developed without access to the other party's Confidential Information; (ii) rightfully received from a third party; (iii) approved in writing for release by the disclosing party; (iv) required to be disclosed by law or by a governmental authority.
Term and Termination:
This Agreement shall continue in effect until terminated in accordance with the terms hereof, subject to the survival provisions set forth herein. In the event EvoPlus has materially breached any of the terms and conditions of this Agreement and has failed to cure such breach within ten (10) days of its receipt of written notice describing such breach, Advertiser may terminate this Agreement by providing seven (7) days written notice to EvoPlus. EvoPlus may, in its sole discretion, terminate this Agreement at any time and for any reason. Following such notice period, if applicable, Advertiser will be billed for any amounts still owed to EvoPlus. Any amounts for services provided under any EvoPlus Advertising Service, including all Account Activation, initial setup or promotion fees, are non-refundable.
Upon request, Advertiser agrees to provide EvoPlus with whatever information EvoPlus may reasonably require about the background of Advertiser and/or the business of Advertiser, including without limitation, information about conversion rates.
Advertiser may not issue any press release or make any public announcement(s) relating to this Agreement or the relationship established by this Agreement without the express prior written consent of EvoPlus, however, EvoPlus may make informational references to its Advertising Programs and Advertiser's participation therein in press releases without obtaining Advertiser's consent.
If any provision in this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and without being impaired or invalidated in any way. Advertiser agrees to work with EvoPlus to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision. This Agreement shall be governed by and construed according with the laws of the state of Washington. Advertiser hereby irrevocably consents to the personal jurisdiction of and venue in the provincial and federal courts located in Montreal, Canada with respect to any action, claim or proceeding arising out of or relating to this Agreement. Advertiser shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of EvoPlus. Subject to the foregoing, this Agreement shall bind and inure to the benefit of both parties and their respective heirs, executors, administrators, successors and assigns. EvoPlus may assign and transfer this Agreement in whole or in part and may delegate its duties or assign its rights hereunder at any time. The Sections marked: "CALCULATIONS"; CONFIDENTIALITY"; "ADVERTISER INDEMNIFICATION OBLIGATIONS"; "AGENCY AGREEMENT"; "LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER"; "ADVERTISER COVENANTS"; "PAYMENT" and "MISCELLANEOUS" shall survive the termination of this Agreement. The waiver of any right or election of any remedy in one instance shall not affect any rights or remedies in another instance. EvoPlus and Advertiser are independent contractors and neither EvoPlus nor Advertiser is an agent, representative or partner of the other.
Advertiser shall strictly comply with all applicable laws, rulings and regulations and shall take no action which would cause EvoPlus to be in violation of any laws, rulings, or regulations applicable to it. Neither party shall be liable for delays in performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God, strikes, inability to obtain labor or materials on time, any delay, failure, interruption or corruption of data or other transmission over any local exchange, interexchange or Internet backbone carrier lines or through routers, switches and other devices owned, maintained and serviced by any third party carrier or utility or Internet service provider beyond the control or jurisdiction of EvoPlus. This Agreement constitutes the entire agreement between the parties relating to the participation in EvoPlus's Advertising Services. This Agreement supersedes all prior and/or contemporaneous agreements and Advertiser agrees it has relied upon no representations, agreements, oral or otherwise, not contained within this Agreement. EvoPlus reserves the right to change the terms to this Agreement by posting such changes to its Web site. Advertiser's continued participation in any EvoPlus Advertising Service following such changes shall be deemed to be continued acceptance of this Agreement including its amendments and modifications.
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