Klosable, Inc. provides a range of marketing products and services for businesses under a number of different product and brand names (collectively, “Marketing Services”) through its website www.Klosable.com (“Klosable Website”) and through other means. These terms and conditions (“Agreement”) relate to all Marketing Services provided by Klosable to you (“you” or “Advertiser“) and shall govern the relationship between Klosable and you. It is Advertiser’s responsibility to read both this Agreement and any other applicable terms depending on the particular Marketing Services purchased.
Klosable reserves the right to amend, modify or restate this Agreement (the “Amendments”) from time to time in its sole discretion. Klosable shall provide notification of the Amendments by updating the “Date Last Modified” set forth above. It is Advertiser’s responsibility to periodically review this Agreement for Amendments, which shall be binding on Advertiser once posted on the Klosable website at https://Klosable.com/legal/terms. Advertiser’s continued use of any of the Marketing Services after the posting of the Amendments is deemed acceptance of this Agreement and the Amendments.
For purposes of this Agreement, all references to “days” will be measured in “calendar days”, unless otherwise noted.
(a) Ordering Marketing Services. Marketing Services may be ordered by Advertiser via several means: (i) through an Digital Marketing Agreement, which can be provided to Advertiser as a printed document or an electronic quote, (ii) through Advertiser’s election of Marketing Services directly through the Klosable Website ordering page as available, or (iii) through add-ons to other services offered by Klosable under different brand names or through different branded websites (any of these means hereafter referred to as an “Order”). The Order sets forth: (a) which Marketing Services are being purchased by Advertiser; (b) the costs for the Marketing Services; and (c) other relevant details of the proposed marketing campaign, (collectively referred to as, the “Campaign”). Advertiser’s transmission of its assent to an Order, payment for any Marketing Services and/or use of any of the Marketing Services constitute its binding agreement to all of the terms of the Order and this Agreement. All Orders are subject to acceptance by Klosable, in its sole discretion. Klosable may withdraw acceptance of any Order in its discretion. This Agreement is incorporated by reference into and made a part of any Order between Klosable and Advertiser. This Agreement and the Order is the entire agreement between Klosable and Advertiser, and no oral statements or representations of any Klosable representative or other party will serve in any way to alter or amend the terms of this Agreement.
(b) Description of Marketing Services. The Marketing Services include, without limitation, the following products and services:
(i) Search Engine Marketing. Klosable’s standard search engine marketing product, where Klosable promotes Advertiser through various search engines and creates landing pages.
(ii) Targeted Digital Display Advertising. Klosable’s standard online display advertising product, where Klosable promotes Advertiser through online display advertisements disseminated through Klosable’s network of online publishers and creates landing pages.
(iii) Retargeting. Klosable’s behavioral targeting product that enables Klosable to display an ad to consumers who have previously evidenced interest in services or similar products or services.
(iv) E-Commerce. Klosable’s online store and e-commerce website creation service, where Klosable creates, designs, hosts and provides access to a platform through a third party e-commerce provider. If Advertiser purchases this service in the Order, then in addition to this Agreement, Advertiser is thereby agreeing to the third party’s terms of service, located at this link: http://www.volusion.com/legal
(v) Custom Advanced Website. Klosable’s website creation service, where Klosable creates, designs, hosts and provides access to a content management system for the website. The Custom Advanced Website service also has an optional purchase by Klosable of a Domain Name or URL on behalf of the client . Client has full access and ownership to the Domain Name and can request a transfer of the Domain Name to their own account at any time.
(vi) Social. Klosable’s suite of digital presence and social media creation, management and advertising products and services, including “Conversations, “Social Foundation”, “Social Creation”, “Facebook Advertising”, “Instagram Advertising”, “Social Advertising”, “Social Suite”.
(vii) Mobile Website Design. Klosable’s mobile optimization product, where Klosable creates, designs and hosts mobile companion sites for the Advertiser.
(viii) Search Engine Optimization (SEO). Klosable’s Search Engine Optimization product, where Klosable will work with the client to improve their website placement on search engines.
(ix) Local Listings Management. Klosable’s local business presence service, where Klosable will create and claim available business presence listings on select websites and will distribute updated business contact information to multiple data sources.
(xi) Reputation Monitoring. Klosable’s reputation monitoring service, where Klosable will provide access to an online reputation monitoring system. This service is also called “Multi-Location Analytics.”
(xii) Interactive Video. Klosable’s creation and hosting of custom online video for use on an Advertiser’s website and social media profiles.
(xiii) Logo Creation. Klosable’s creation of a custom logo.
(xiv) Klosable Dashboard. This service tracks data and statistics concerning the performance of the Campaigns. As part of the Marketing Services, Advertiser will automatically be provided with the Dashboard.
(xv) Call Tracking. A phone call tracking service where Klosable has added a call tracking phone number on behalf of Advertiser that is forwarded to a number provided by Advertiser, and which may include call recording. The call recording feature is not available for certain types of businesses that are deemed “covered entities” under the Health Insurance Portability and Accountability Act of 1996, as amended (“ HIPAA”) (see Section 1(e) below for more information).
(xvi) Direct Email Program. Klosable’s creation and distribution (sending emails) to a targeted group of opted-in email accounts, based on the Advertiser’s desired audience.
(c) Additional Products and Services. As and when Klosable adds other products and services to its portfolio, they will be referenced on the Order. Any special terms and conditions will be posted online at https://Klosable.com/legal/terms and incorporated by reference into and made part of this Agreement.
(d) Third Party Providers. Klosable may use third party service providers to support and/or supply some or all of the technology, platforms, content and/or other products/services for use in connection with the services provided in this Agreement. Some third party service providers may require Advertiser to accept additional terms and conditions as a condition to use of their products or services, which terms may be identified in the Order or required as a click to accept agreement prior to use of the third party product or service.
(e) HIPAA-Related Service Exclusions. Klosable is not structured to serve as a “Business Associate” within the meaning of the Privacy Regulations promulgated pursuant to HIPAA. Accordingly, certain Marketing Services cannot be provided to Advertisers who are considered “covered entities” under HIPAA, to the extent such services would involve Klosable or its affiliates or providers having access to protected health information of Advertisers’ customers.
(f) Restrictions on Use of Marketing Services. The Marketing Services are only for use by persons over 18 years of age. By using the Marketing Services you are representing and warranting that you are a person over 18 years of age. The Marketing Services may not be accessed or used through the use of “bots” or any other automated device or automated computational machine. The Marketing Services may only be used or accessed through an electronic device under the manual control at all times of the Advertiser or its personnel or contractors.
(g) Suspension of Marketing Services. Klosable reserves the right in its discretion to suspend all or any of Advertiser’s Marketing Services if it believes that Advertiser is violating this Agreement, any applicable law or any third party right, or the Advertiser Site (as defined in Section 8) is under a denial of service or other attack, is experiencing technical difficulties or is suspected of having a virus or other malware. Klosable will provide notice of such suspension as soon as practicable, and may reinstate Marketing Services upon evidence of correction of any such issue. If such issue is not fully corrected in Klosable’s sole determination, Klosable may terminate the Agreement for cause as provided in Section 6(d).
(h) No Guarantee. Due to the unpredictable nature of the Internet, the involvement of third parties (including, without limitation, search engines and listing services), and variable audience response, Klosable in no way represents, warrants, or guarantees that any measurable or immeasurable results will occur from any of the Marketing Services, including, without limitation, clicks, leads, revenues, sales, audience, search engine placement, or other metrics. Advertiser also understands that specific results are unpredictable, especially for new Marketing Services, and are NOT indicative of prospects, long-term performance, or Klosable’s performance in general.
Special Terms Relating to Certain Marketing Services
(a) Placement. Klosable shall determine, in its sole discretion, on which online property(ies) (each, a “Publisher”) the marketing content (“Ads”) will run during the course of the Campaign involving Search Engine Marketing, Targeted Display Advertising and Retargeting. Advertiser acknowledges that Klosable does not operate or control any Publisher – with the exception of properties owned or operated by Klosable or its affiliates (the “Klosable Properties”). Klosable is not responsible for any Publisher’s website, policies, practices or terms and conditions. Advertiser further acknowledges that at any time during the Campaign, the Publisher mix may change. Klosable makes no guarantee about when or where the Ads will be displayed by the Publisher or by Klosable.
(b) Geotargeting. With respect to Search Engine Marketing, Targeted Display Advertising and Social Advertising products, Klosable will use commercially reasonable efforts to place Ads such that they will be seen by consumers in the target locales identified during the Campaign initiation process, but Klosable does not guarantee that Advertiser’s Ads will only be displayed in the target locales or in all target locales. Klosable will not provide geotargeting where prohibited by law or otherwise in its sole determination where the permissibility of such services is in question.
(c) Listing Services. With respect to Local Listings Management, Klosable may create profile page(s) for Advertiser and post online in the directories of third parties. The listings may include the following information regarding Advertiser: name, phone number, email address, physical address and information regarding the products or services of Advertiser (the “Local Profile”). Advertiser is responsible for ensuring the accuracy of all information in the Local Profile.
(f) Marketing Services Involving Phone Numbers. Phone numbers provisioned by Klosable as part of the Marketing Services remain the property of Klosable and/or its third party providers until and unless legally transferred to Advertiser. Such transfer, if agreed to by Klosable in its discretion or permitted by the third party provider, as the case may be, requires (i) completion of a transfer form, (ii) payment of the transfer fee then in effect, and (iii) payment of all outstanding invoices through the transfer request date plus an extra month of base fees to cover the time required to move the phone numbers. Phone numbers that belong to the Advertiser may be forwarded to phone numbers provided by Klosable as part of the Marketing Services at no additional charge.
(a) Set-Up Period.
(i) Campaign Set-Up Period. Klosable may take up to ten (10) business days or longer to review and prepare the Campaign (longer if Klosable has been asked to provide creative services, or if Klosable experiences technical difficulties with Advertiser’s Campaign, or in the event of Force Majeure, as set forth in Subsection 18(g) below) and may require further input from Advertiser before the Campaign is distributed to the Publisher. The Publisher may then take additional time to commence dissemination of the Campaign (collectively, the “Set-Up Period”). The Set-Up Period will commence only upon Klosable’s receipt of an Order signed by Advertiser and acceptance of the same by Klosable.
(ii) Notice Period. During the Set-Up Period, Klosable may send via email to Advertiser for its review and approval certain deliverables in draft form, including without limitation creative materials or a gallery of templates for review and selection (the “Deliverables”). Advertiser agrees to provide written or email notice to Klosable either approving or rejecting the Deliverables (in whole or in part), or selecting Deliverables as the case may be, within five (5) business days from the date of receipt of the Deliverables (the “Notice Period”). Advertiser acknowledges and agrees that TIME IS OF THE ESSENCE with respect to approving, rejecting or selecting Deliverables within the Notice Period. If Advertiser fails to provide written or email response within the Notice Period, the Deliverables will be deemed “approved” by Advertiser and/or Klosable will use its best judgment to select an appropriate template for the Advertiser from the Deliverables.
(b) Campaign Cycles. The “Campaign Period” (as defined below in Section 6(a) and as set forth on the Order) for certain Marketing Services will consist of one or more “Campaign Cycles”. The Campaign Cycle for these Marketing Services is defined as the period of time from Klosable’s commencement of applying the Budget (as defined in Section 4(a)(ii) below) until such time as no less than 98% of the Budget has been utilized. While, on average, this is approximately a thirty (30) day period, Klosable makes no guarantee with respect to the time it takes to fully utilize the Budget. Advertiser acknowledges that all statistics provided by Klosable evidencing such utilization shall be conclusive and binding on Advertiser for all purposes of this Agreement.
(c) Go-Live Period. Once the Set-Up Period is done, and the product is completed and ready to “go-live,” certain log-in information or domain name information may be requested from Advertiser and is required to “go-live”. If the information has been requested, and a written or email response is not received in five (5) business days from the request, the product will be deemed fulfilled. If at a future date, the log-in information or domain name information is received from Advertiser, the fulfilled product will be made live. For mobile website design, redirect code will be forwarded to Advertiser with the instructions on how Advertiser can implement the product themselves, and product will be deemed fulfilled.
Advertiser acknowledges and agrees to pay the following fees as applicable for the Marketing Services (actual dollar amounts are set forth on the Order) in accordance with the payment terms in Section 5 below:
(a) Descriptions of Fees.
(i) Monthly Fee. “Monthly Fee”, as set forth on the Order, refers to the fee associated with each of the Marketing Services.
(ii) Budget. “Budget”, as set forth on the Order, refers to the monthly dollar spend designated for each of the Campaign Cycles during the Campaign Period. Advertiser acknowledges and agrees that the Budget is measured by the total number of clicks and/or the total number of impressions used. If there is an unused portion of the Budget after the scheduled expiration of the Campaign Period, the Campaign Period will be extended until such Budget is consumed. With respect to any Renewal Campaign Period (as defined in Section 6(i)), the applicable Budget associated with that Campaign will renew for the same Budget amount that applied to the prior Campaign Period, unless otherwise agreed by the parties.
(iii) Cycle Payment. “Cycle Payment” refers to the aggregate recurring fees for each of the Campaign Cycles, such as the Budget.
(iv) Campaign Set-Up Fee. “Campaign Set-Up Fee” refers to a one-time fee for the set-up of a Campaign, which can include, but is not limited to, the Publisher set up, keyword generation, proxy creation, creative services and other similar set-up requirements. With respect to Search Engine Marketing, the Campaign Set-Up Fee also includes a review of the Campaign within the first sixty (60) days of the Campaign.
(v) One-time Product Fees: “One-time Product Fees,” as set forth on the Order, refers to a one-time cost to purchase a Marketing Service.
Klosable reserves the right to change any of the foregoing fees at any time, provided that, such changes will not take effect until: (i) a new Order has been agreed between Advertiser and Klosable; or (ii) the renewal of an existing Order after implementation of the new fees.
(b) No Pass-Through Obligations. Advertiser is not entitled to any credits, discounts, rebates, refunds or any other amounts provided to Klosable by a Publisher or any other third party.
(c) Discount Credits. If Klosable offers any special promotions which provide Advertiser with discounts, credits or any other fee reduction incentives in connection with any Order (the “Discount Credits”) and: (i) Advertiser terminates such Order (other than for cause under Subsection 6(d) below); or (ii) Klosable terminates such Order for cause under Subsection 6(d) below, then Advertiser will be required to repay to Klosable, within ten (10) days of such termination, the full amount of the Discount Credits used by Advertiser.
(d) Refunds and Chargebacks. Klosable will not issue cash refunds for early cancellation of Marketing Services, except as expressly set forth in this Agreement. Klosable will resolve any errors in billing through communication with Advertiser. Klosable has a zero tolerance policy for chargebacks, and any Advertiser who disputes a credit card payment that is found to be valid will be permanently barred from use of the Marketing Services, and shall be liable for any costs incurred by Klosable relating to the chargeback.
(a) General. Subject to Section 6 below, once an Order has been accepted by Klosable, Advertiser will be responsible for payment of all fees set forth therein, except as may otherwise be provided in Section 6(c). All payments due are in U.S. dollars and are exclusive of any sales, use or similar applicable taxes, which shall be the sole responsibility of Advertiser.
(b) Method and Timing of Payment.
(i) Method of Payment. Advertiser may pay for all amounts payable under this Agreement by: (A) credit card (the “Advertiser’s Card”); (or (B) receiving an invoice, at Klosable’s sole discretion. If paying by credit card, Advertiser will be required to sign and comply with the applicable payment authorization forms. In the event Advertiser receives an invoice, all amounts will be due upon Advertiser’s receipt of the invoice.
(ii) Timing of Payment.
(A) Timing. Advertiser acknowledges and agrees that all amounts owed must be paid in advance of each Campaign Cycle and that, in addition to being in breach of its contractual obligations, Advertiser’s Campaign may be suspended or terminated if timely payment is not made. If Advertiser has authorized payment by Advertiser’s Card, such authorization permits Klosable to recover any Discount Credits (as set forth above) in the authorized manner, and to process all payments for ongoing or additional services or products and any other amounts owed pursuant to an Order or this Agreement via such Advertiser’s Card.
(B) Initial Payment. Advertiser shall pay: (I) the Cycle Payment for the initial Campaign Cycle; and (II) if applicable, the Campaign Set-Up Fees, on or before the commencement of the Set-Up Period.
(C) Subsequent Payments. All subsequent Cycle Payments will be made no later than three (3) days prior to the start of the applicable Campaign Cycle.
(D) On-going Payments. In order to avoid any pauses in the Campaign associated with Marketing Services that have a Budget, Advertiser authorizes Klosable to cause payment to be made, via Advertiser’s Card or other chosen method of payment, for the upcoming Campaign Period when seventy-five percent (75%) of the Budget for the current Campaign Period has been exhausted.
(E) Payments for Other Products and Services. For all Marketing Services elected by Advertiser that do not include a Budget, Advertiser authorizes Klosable to cause payments to be made, via Advertiser’s Card or other chosen method of payment, within seven (7) days prior to the expiration of the applicable Campaign Cycle.
(c) Late Charge; Suspension of Marketing Services. Any amounts not paid by Advertiser when due shall be subject to a late charge equal to one and one-half percent (1.5%) per month (or the highest rate permitted by law, if less). Advertiser agrees to pay all costs of collection (including attorneys’ fees and costs and all other legal and collection expenses) incurred by Klosable in collecting payments under the Order and/or this Agreement. In addition, Klosable may suspend the performance of Marketing Services in the event that any undisputed fees are overdue more than ten (10) days, shall not be obligated to resume such performance until the overdue fees have been paid and shall have no liability for such suspension.
(a) Term. Subject to Section 3 above and Subsection 6(i) below, the term of this Agreement shall be the Campaign Period (as defined below) set forth on the applicable Order (the “Initial Campaign Period”), unless terminated sooner as provided herein, or extended by renewal. The Initial Campaign Period and any Renewal Campaign Period (as defined in Section 6(i)(A) below shall be collectively referred to herein as the “Campaign Period”.
(b) Termination by Klosable. Klosable may terminate any Campaign, with or without cause, upon written or email notice.
(c) Termination by Advertiser. Subject to Subsections 4(c), 6(f) and 6(h), Advertiser may terminate the Campaign during the Initial Campaign Period upon thirty (30) days prior written or email notice to Klosable in accordance with these terms. Such written notice must be received on the Klosable Cancellation Form, which can be accessed at https://Klosable.com/legal/cancellation-notice/ No other means of termination by Advertiser will be valid. If the cancellation is received during the Initial Campaign Period, the Advertiser may still be subject to the Early Termination Payment outlined in Section 6(h).
(d) Termination For Cause. Either party may terminate an Order on thirty (30) days prior written or email notice (the “Termination Notice Period”) if the other party is in material breach of its obligations under the Order and/or this Agreement and such breach has not been substantially cured by the end of the Termination Notice Period. Notice must be received on the Klosable Cancellation Form, which can be accessed at https://Klosable.com/legal/cancellation-notice/ . No other means of termination by Advertiser will be valid. The Advertiser acknowledges and agrees that it will be responsible for any obligations accrued through the effective termination date.
(e) Campaign Pauses. Advertiser may request a pause in a Campaign. However, it shall be in Klosable’s sole discretion to determine if a Campaign pause is appropriate. If a Campaign is paused for more than thirty (30) consecutive days, Advertiser will have to pay an additional Campaign Set-Up Fee to restart the Campaign.
(f) No Refunds. Advertiser acknowledges and agrees that it will not be entitled to any refunds of amounts already paid to Klosable, unless: (i) Advertiser terminates for cause under Subsection 6(d); or (ii) Klosable terminates under Subsection 6(b) above, in which case Advertiser shall only be entitled to a refund for the unearned portion of the then applicable Cycle Payment.
(g) Effect of Termination; Survival. Advertiser acknowledges and agrees that due to the nature of the internet, certain information regarding Advertiser that will be posted on the internet as part of the Marketing Services, including, for instance, the Local Profile posted on third party directories, may continue to be available from the internet following termination of any of the Marketing Services and/or the Order. All provisions of this Agreement that by their sense or nature should survive termination of the Order (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall so survive. Without limiting the generality of the foregoing, in the event of any termination, Advertiser shall remain liable for any amounts due to Klosable as of the effective date of termination.
(h) Early Termination Payment. If Advertiser terminates the Order and/or this Agreement, without cause, prior to the expiration of the Initial Campaign Period, any unpaid portion of the Monthly Fees set forth on the Order, shall become immediately due and payable (the “Early Termination Payment”). The Early Termination Payment will not apply: (i) if this Agreement is terminated under Subsections 6(b) or 6(d) or (ii) during any Renewal Campaign Period that was automatically renewed (as defined below in Section 6(i)(A)).
(A) Automatically Renewing Campaign Periods. As indicated on the Order, certain Marketing Services and Bundled Packages will automatically renew (a “Renewal Campaign Period”). The Initial Campaign Period for such Marketing Services and Bundled Packages shall automatically renew for additional periods of the same duration as the Initial Campaign Period, unless Advertiser provides sixty (60) days prior signed, written or email notice on the Klosable Cancellation Form, which can be accessed at https://Klosable.com/legal/cancellation-notice/ . If the cancellation is received during the Initial Campaign Period, the Advertiser may still be subject to the Early Termination Payment outlined in Section 6(h). Only automatically renewed Campaign Periods are considered “Renewal Campaign Periods” for purposes of the exclusion from Section 6(h).
(B) Other Campaign Period Renewals. Any Marketing Services that are not subject to automatic renewal under Section 6(i)(A) above will require execution of a new Order by Advertiser in order to renew. Any early termination of the Campaign Period for such Marketing Services will be subject to the Early Termination Payment outlined in Section 6(h).
Advertiser Data; Klosable Platform.
(a) Advertiser Data. As part of a Campaign initiation process and from time to time during a Campaign, Advertiser will provide certain information to Klosable (the “Advertiser Data”), which Klosable will input into one or more third party web-based marketing platforms (the “Platform”). Advertiser hereby authorizes Klosable to input Advertiser Data, including, without limitation, Advertiser contact information, credit card or ACH information and Campaign information, into the Platform. Klosable will only use such information in connection with the fulfillment of the Marketing Services and as otherwise permitted by the Order and this Agreement. In addition, Klosable may, from time to time, send Advertiser emails regarding Platform updates, Campaign updates, payment reminders, and marketing opportunities relating to Klosable and its commercial partners. Advertiser agrees to receive such emails. Advertiser may also elect to receive texts with such information.
(b) License to Platform. Upon execution of the Order, Advertiser will be granted a revocable, non-transferable, non-exclusive, limited license to use the Platform solely for the purpose of accessing the relevant Marketing Services. Advertiser’s access shall be password protected and Advertiser agrees that it shall not share its password with third parties or otherwise provide access to the Platform to third parties. If the security of Advertiser’s username(s) or password(s) is compromised in any way, or if Advertiser or its agent suspects that it may be, Advertiser shall immediately contact Klosable. Klosable is not responsible for any loss or damage suffered by the compromise of any password. Advertiser acknowledges and agrees that it does not have, nor will it claim any right, title or interest in the Platform, the Platform software, data, applications, methods of doing business or any elements thereof, or any content provided on the Platform. Advertiser may only access the Platform via a Web browser or in a manner otherwise approved by Klosable. Advertiser will not attempt in any way to reverse engineer, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Platform. Klosable may terminate the foregoing license, at any time and for any reason. Use of the Platform may be subject to additional terms and conditions required by the third party provider.
Marketing Services Content; Creative Services; Keywords
(a) Marketing Services Content.
(i) General Content. Advertiser will deliver all content required for Marketing Services to Klosable within five (5) days from the execution of the Order. Advertiser is solely responsible for ensuring that all content is complete, accurate, is non-infringing and complies with applicable law, and is liable for any and all claims and damages relating to such content. If such content does not conform to Klosable’s or any Publisher’s specifications, then Klosable or the Publisher may, in its sole discretion, modify or reject such content to meet the Publisher’s or other technical requirements or to address Campaign performance issues; provided that any substantive changes to content shall be reviewed by Advertiser for accuracy. If content is rejected, Klosable will then refund any applicable amounts paid in advance. Advertiser acknowledges and agrees that Klosable shall not be liable for typographical errors, incorrect insertions or omissions in any of the content provided.
(ii) Ad Content. Advertiser will deliver all content required for any Ad to Klosable within five (5) days from the execution of the Order. Advertiser is solely responsible for ensuring that all content is complete, accurate, is non-infringing and complies with applicable law, and is liable for any and all claims and damages relating to such content. If such content does not conform to Klosable’s or any Publisher’s specifications, then Klosable or the Publisher may, in its sole discretion, modify or reject such content to meet the Publisher’s or other technical requirements or to address Campaign performance issues; provided that any substantive changes to content shall be reviewed by Advertiser for accuracy. If rejected, Klosable will then refund any applicable amounts paid in advance. Advertiser acknowledges that it may be limited in its ability to make further modifications to its Ads after they have been delivered to Klosable. The acceptance of an Ad does not constitute approval or endorsement of the Ad by Klosable or by the Publisher, for purposes of this Agreement or otherwise. Advertiser acknowledges and agrees that Klosable shall not be liable for typographical errors, incorrect insertions or omissions in the published Ad or in the failure to publish an Ad (“Error”), except as expressly provided in the next sentence. In the event of an Error, Klosable will, in its sole discretion, either: (A) run a corrective Ad; or (B) credit Advertiser for that Ad, provided in each case that, such an Error is not the fault of the Advertiser. The foregoing shall be the Advertiser’s sole right and remedy (and Klosable’s sole liability) in the event of an Error.
(iii) Third Party Permissions. To the extent that any content provided by Advertiser is or may be owned by a third party, Advertiser represents and warrants that it has reasonably investigated the source of such content and as applicable has obtained all necessary rights and licenses to provide the content and permit Klosable and other third parties to use the content in connection with the Marketing Services. Klosable may, but is not obligated to, require Advertiser to present proof of such third party rights and licenses prior to using the content and may reject any content, which does not have the appropriate third party rights or licenses.
(b) Klosable Creative Services. Klosable may as part of certain Marketing Services purchased by Advertiser or otherwise at Advertiser request create or modify an Ad or other content or provide other creative services (the “Creative Product or Service”). Advertiser is solely responsible for ensuring that all content in any Creative Product is complete, accurate, is non-infringing and complies with applicable law, and is liable for any and all claims and damages relating to such content. With respect to an Ad or content created by Klosable, as between Advertiser and Klosable, Klosable shall retain ownership of the design elements of the Ad or content, excluding any trade name, trademark, service mark or logo of Advertiser or other pre-existing proprietary elements of Advertiser that may be included within the Ad or content, that predate its creation. Klosable hereby grants to Advertiser a non-exclusive, royalty-free, worldwide license to use the Creative Product or Service during the Campaign Period.
(c) Keywords. With respect to Search Engine Marketing, Klosable shall have discretion to select the individual words or phrases (“Keywords”) to be used in connection with the Campaign. Advertiser may also request the use of certain Keywords. While Klosable will use reasonable efforts to use these Keywords, Klosable makes no guarantee that all such Keywords will be used. To the extent that Klosable uses Keywords of its choosing, it shall be under no obligation to disclose such Keywords to Advertiser. TO THE EXTENT THAT ADVERTISER ELECTS TO USE KEYWORDS THAT INCLUDE THE NAMES OF ITS COMPETITORS OR TRADEMARKED TERMS (“COMPETITOR KEYWORDS”), ADVERTISER DOES SO AT ITS OWN RISK AND ACKNOWLEDGES AND AGREES THAT IT BEARS ALL LIABILITY ASSOCIATED WITH SUCH ACTION, AND HEREBY AGREES TO FULLY INDEMNIFY KLOSABLE AND ITS AFFILIATES FOR ANY SUCH USE. WITHOUT LIMITING THE FOREGOING, ADVERTISER FURTHER ACKNOWLEDGES THAT KLOSABLE MAY, AT ANY TIME AND IN ITS SOLE DISCRETION, REMOVE COMPETITOR KEYWORDS, BUT WILL NOT HAVE THE OBLIGATION TO DO SO.
Intellectual Property; Licenses
(a) Ownership of Marketing Services. All elements of the Marketing Services including, without limitation, all software and documentation, electronic and printed media, and all other elements of the Marketing Services are the proprietary property of Klosable or its licensors, as applicable, and are protected by copyright, trade secret, trademark and patent laws, and other proprietary rights and laws. The Marketing Services may only be used or accessed as specifically provided for in this Agreement. Advertiser agrees that it will not store, copy, modify, rent, lease, loan, sell, distribute, transfer, transmit, display, reverse engineer, reverse assemble, or otherwise attempt to discover any programming code or any source code used in or with the Marketing Services. Advertiser may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Marketing Services (which includes its software and documentation), create derivative works based on or in any manner commercially exploit the Services, in whole or in part.
(b) Licenses. During the Campaign Period, Advertiser hereby grants to Klosable and the Publisher a non-exclusive, transferable, royalty-free, worldwide license to use, copy, modify (as permitted herein), publicly perform, display, broadcast and transmit: (a) any Ad delivered hereunder in accordance with the terms of an Order and this Agreement; and (b) the Advertiser Site, including, but not limited to, any trademarks, to the extent necessary for Klosable to perform the services contemplated by the Order and this Agreement. Except as set forth in Subsection 9(b) above, title to and ownership of all intellectual property rights of all Ads and associated Advertiser intellectual property shall remain with Advertiser or its third party licensors and upon termination, Klosable shall promptly return such property to Advertiser. In addition, Advertiser agrees that Klosable may, during the Campaign Period and thereafter, include Advertiser’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder in Advertiser’s Local Profile, on Klosable’s customer list, and in its marketing materials, sales presentations and the Klosable Properties.
Advertiser Representations; Warranties and Covenants
Advertiser is solely responsible for any liability arising out of or relating to the Advertiser Site (including without limitation any collection or use of personal information on the Advertiser Site and obtaining required consents for cookie use), any Ad or any content provided by Advertiser hereunder and any material to which users can link through such Ad including without limitation any third party content contained therein (“Linked Content”). Advertiser represents, warrants and covenants that the Advertiser Site, the Ads and Linked Content, and any portion thereof, do not and will not: (a) infringe on Klosable’s or any third party’s copyright, patent, trademark, trade secret, moral right or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. Advertiser further represents, warrants and covenants that the product or service that is being (or will be) promoted through the Campaign, including any Ad, Linked Content or other content provided by Advertiser, is: (x) lawful and (y) not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities.
Advertiser shall indemnify, defend and hold harmless Klosable and the Publisher and their respective subsidiaries, affiliates and parent companies and each of their respective directors, officers, agents and employees and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys’ fees and expenses) incurred in connection with any claim, action or proceeding arising from or relating to: (a) any breach by Advertiser of any representation, warranty, covenant or other obligation contained in this Agreement; (b) the violation of any rights of any third party, including intellectual property, privacy, publicity or other proprietary rights by Advertiser or anyone using Advertiser’s account; (c) Ads, Advertiser Data, Advertiser Site(s), content provided by or created for Advertiser and any of Advertiser’s terms and conditions and/or privacy policies relating to its Advertiser Site(s), (d) the sale, license or provision of Advertiser’s goods or services; (e) Advertiser’s use of Competitor Keywords; (f) Advertiser’s misuse of any Marketing Services or use of any Marketing Services in connection with medical or health-related facilities or services, including, without limitation, alleged violations of HIPAA or other federal or state privacy or other laws and regulations; (g) Advertiser’s actions on behalf of any Authorizing Company (as defined in Section 14 below), or (h) any willful, intentional or negligent act, omission or misrepresentation by Advertiser. Klosable reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Advertiser. If Klosable does assume the defense of such a matter, Advertiser will reasonably cooperate with Klosable in such defense. Advertiser will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to, or any admission of wrongdoing by, any indemnified person or entity, without Klosable’s prior written consent.
Notwithstanding anything to the contrary contained in any other order, agreement or addendum between the parties or their affiliates, the indemnity obligations in this Section 17 apply to all such orders, agreements and addendums, and supersede and replace any other indemnity provisions whether applicable to Klosable, its affiliates or Advertiser.
Advertiser represents and warrants that, in the event it is purchasing advertising on behalf of another company, it has been authorized by such company to act as its agent in all respects relating to this Agreement, including, without limitation, the making of any elections or giving of any consents (the “Authorizing Company”). Without limiting the generality of the foregoing, Advertiser agrees on behalf of the Authorizing Company, that the Authorizing Company has been made aware of, and agrees to be bound by, this Agreement and as applicable any relevant third party terms. Advertiser and the Authorizing Company shall be jointly and severally liable for fulfillment of Advertiser’s obligations under this Agreement, including all payment obligations. Prior to the purchasing of any advertising on behalf of the Authorizing Company, Advertiser will provide Klosable with any elections and/or consents, executed by a duly authorized representative of the Authorizing Company, relating to the advertising.
Except as may be required by applicable law, Advertiser shall not disclose the contents of this Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without Klosable’s prior written consent. Except as otherwise expressly herein permitted, no party may issue a press release concerning the existence or terms of this Agreement without the prior written consent of the other party. “Confidential Information” means information about Klosable’s (or its suppliers’) business, products, technologies (including the Platform), strategies, financial information, operations or activities that is proprietary and confidential, including, without limitation, all business, financial, technical and any other information which, from all the relevant circumstances, should reasonably be assumed to be confidential and proprietary. Confidential Information will not include information that is: (a) in the possession of Advertiser free of any obligation of confidentiality at the time of its disclosure; (b) or becomes publicly known other than by a breach of this provision; (c) received without restriction from a non-party free to disclose it; and/or (d) developed independently by Advertiser without reference to the Confidential Information. In addition, information, whether or not Confidential Information, may be disclosed by Advertiser as may be required by applicable law, rule, regulation, or lawful process, provided that, Advertiser, to the extent permitted by applicable law, rule, regulation, or lawful process, first notifies Klosable in order to permit Klosable to seek reasonable protective arrangements.
Disclaimer of Warranties
(a) KLOSABLE PROVIDES THE KLOSABLE WEBSITE, THE PLATFORM AND ALL MARKETING SERVICES PERFORMED HEREUNDER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD OR OTHER AVERTISING PRODUCTS OR SERVICES. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD OR OTHER AVERTISING PRODUCTS OR SERVICES, KLOSABLE’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. KLOSABLE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. KLOSABLE WILL HAVE NO LIABILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION; (ii) CLAIMS RELATING TO BREACH OF INTELLECTUAL PROPERTY LAWS OR DEFAMATION; (iii) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM ADVERTISER’S ACCESS TO OR USE OF THE MARKETING SERVICES; (iv) UNAUTHORIZED ACCESS TO OR USE OF KLOSABLE’S SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (v) INTERRUPTION OF TRANSMISSION TO OR FROM THE MARKETING SERVICES; (vi) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE MARKETING SERVICES BY ANY THIRD PARTY; (vii) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE MARKETING SERVICES; OR (viii) MATTERS BEYOND ITS OR THEIR REASONABLE CONTROL. KLOSABLE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED, OFFERED OR PROVIDED BY A THIRD PARTY ON OR THROUGH THE MARKETING SERVICES OR ANY LINKED WEBSITE.
(b) NO ADVICE, CONTENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ADVERTISER FROM KLOSABLE OR ITS AFFILIATES THROUGH THE KLOSABLE WEBSITE, ANY Order AND/OR THE MARKETING SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT.
(c) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KLOSABLE MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OR PLACEMENT OF ANY AD OR CAMPAIGN.
(d) TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, KLOSABLE AND ITS AFFILIATES EXPRESSLY DISCLAIMS ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, AT ANY TIME IN THE PAST OR FUTURE, FROM USE OF ANY THIRD PARTY WEBSITE, CONTENT, SERVICE OR PRODUCT.
Limitations of Liability
(a) NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING EXCLUSION OF LIABILITY WILL NOT APPLY TO (I) ADVERTISER’S INDEMNIFICATION OBLIGATOIONS, INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION THEREWITH; (II) TO ADVERTISER’S CONFIDENTIALITY OBLIGATIONS AND (III) ADVERTISER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(b) LIMITATION ON DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL KLOSABLE’S CUMULATIVE, AGGREGATE LIABILITY TO ADVERTISER OR ANY THIRD PARTY EXCEED THE NET AMOUNTS RECEIVED BY KLOSABLE HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. IN LIEU OF REFUND, KLOSABLE SHALL BE PERMITTED, IN ITS SOLE DISCRETION, TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, PROVIDED THAT, SUCH “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
(c) Prohibition on Certain Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to Advertiser. To the extent Klosable may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Klosable’s liability will be the minimum permitted under such law.
(d) Timing of Claims. Advertiser agrees that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be filed within one year after such claim or cause of action arose or be forever barred, provided that, this section shall not in any way limit the time in which claims for infringement or misappropriation of intellectual property rights may be brought.
(e) Acknowledgement. Each party acknowledges that the other party has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties. Notwithstanding anything to the contrary contained in any other order, agreement or addendum between the parties or their affiliates, the limitations of liability in this Section 17 apply to all such orders, agreements and addendums.
Third Party Beneficiaries
Advertiser acknowledges and agrees that the Publisher is an intended third party beneficiary of Sections 9, 11, 12, 13 and 17.
(a) Governing Law/Venue. This Agreement will be governed and construed in accordance with the laws of the Commonwealth of Massachusetts without giving effect to conflict of law rules or principles. In the event that a dispute arises with respect to the terms of this Agreement, Advertiser agrees that the exclusive and sole venue for the resolution shall be a court of competent jurisdiction in Massachusetts and further agrees to submit to the jurisdiction of the same.
(b) Entire Agreement/Amendment. This Agreement (which includes the Order and any payment authorization forms) sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof.
(c) Notices. Any written notices to Klosable required under this Agreement shall be provided by registered mail with proof of delivery or by overnight courier, signature required, to Klosable’s then current corporate headquarters address (as shown on www.Klosable.com), Attn: General Counsel with a copy sent by email to notices@Klosable.com. Notices shall be deemed delivered upon actual receipt of hard copy as evidenced by signature proof of delivery.
(d) Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
(e) Assignment. Advertiser may not assign this Agreement without the prior written consent of Klosable. Klosable may assign this Agreement in whole or in part to any affiliate or to a party that acquires all or substantially all of the assets or business to which this Agreement relates. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns.
(f) Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.
(g) Force Majeure. Neither party shall have any liability for any failure or delay (other than with respect to payment obligations) resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.