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Online Marketing Service Agreement
This Online Marketing Service Agreement is a legal agreement between myEcommerce Inc
("Service Provider") and you the "Advertiser" (either an individual or a single entity).
By accepting this Agreement and subject to the terms
and conditions of this Agreement, including those terms and conditions that are set forth on the website located at http://www.myecommerce.biz/Terms-of-Service.html ("terms of Service of the Provider's WebSite") that are incorporated herein by reference, Service Provider agrees to provide certain technical support services ("Services") to the Customer in connection with the Customer's use of authorized versions of specific software ("Supported Software") for which Service Provider is prepared to provide support.
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1. INTRODUCTION:
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myEcommerce, Inc. ("myEcommerce") a California Company, provides you access to the myEcommerce Online Marketing Services (defined below), subject to your
compliance with the terms and conditions below (the "Agreement"). Please read this Agreement carefully. By enrolling as an "Advertiser," you agree to
be bound by these terms and conditions and the terms and conditions of any Insertion Order that you complete (either online as part of the Online Sign-Up form, or offline,
when enrolling as an Advertiser, each an "Insertion Order"), including all payment terms (collectively, the "Agreement"). IF YOU DO NOT AGREE TO BE
LEGALLY BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOTIFY myEcommerce WITHIN FIVE (5) DAYS OF YOUR ORDER AND THE myEcommerce ONLINE MARKETING SERVICES WILL BE CANCELED
WITH NO FURTHER OBLIGATIONS BY EITHER PARTY. PROVIDED, HOWEVER, THAT YOU SHALL BE RESPONSIBLE FOR COSTS OF ALL myEcommerce ONLINE MARKETING SERVICES PROVIDED UNTIL SUCH
CANCELLATION PROCEDURE IS FOLLOWED. FAILURE TO NOTIFY myEcommerce OF CANCELLATION ACCORDING TO THE PROCESS DEFINED ABOVE SHALL BE DEEMED TO INDICATE THAT YOU HAVE READ AND
UNDERSTOOD THESE TERMS AND CONDITIONS, AND AGREE TO BE BOUND BY THEM. In this Agreement, "you" and "your" refers to the "Advertiser". You
agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of the myEcommerce Online Marketing
Services, shall be bound by, and shall abide by, these Terms and Conditions. You further agree that you are bound by these Terms and Conditions whether you are acting on
your own behalf or on behalf of a third party, including another advertiser.
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2. TERM, PAYMENT AND MODIFICATION:
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The term of this agreement shall begin and become effective as of the advertising start date and shall continue as
follows: 6 full calendar months for search engine optimization and maps optimization, 3 full calendar months for pay per click services, and 1 full calendar month for
profile page (InLocal) services. This agreement shall renew at the end of each current term for a successive 1 month term unless either party gives written notice of its
intention not to renew 30 days before expiration of the current term.
Advertiser agrees to pay to myEcommerce all applicable charges to its account in United States
dollars, in accordance with the payment terms and conditions and /or payment plan you selected, including, if any, all applicable taxes, within 15 days of such charges
becoming due and in accordance with the billing terms in effect at the time the fee becomes payable. 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 setup fee, initial deposit, subscription fee, and/or service fee (or similar one-time payment depending on the myEcommerce Advertising Service selected by
Advertiser) is nonrefundable. Advertiser understands and agrees that the myEcommerce Advertising Services are billed one month in advance. In addition, if Advertiser has
elected to pay myEcommerce by credit card, Advertiser agrees to authorize myEcommerce to charge its credit card in advance for such payments and for any amounts owed under
this Agreement. In the event of early termination, Advertiser agrees to pay an early termination fee equal to the greater of 50% of any remaining amount to be paid or 1
full calendar month's fee. If myEcommerce is unable to collect owed amounts from Advertiser, Advertiser shall pay to myEcommerce an insufficient funds fee equal to the
greater of $25 or 6% of the total amount due, and Advertiser will be subject to a late payment charge equal to the lower of 1.5% per month accruing from the invoice date
or the maximum amount allowed by applicable law. In case collection proves necessary, the Advertiser agrees to pay all fees (including all attorney's fees and court costs)
incurred by that process.
You agree that myEcommerce may modify this Agreement and the myEcommerce Advertiser Services from time to time and that myEcommerce
reserves the right to adjust the pricing of such services. You agree to be bound by any changes myEcommerce may reasonably make to this Agreement when such changes are
made. If you have purchased Services from myEcommerce, the term of this Agreement shall continue in full force and effect as long as you take advantage of and use the
Services.
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3. ADVERTISING FEES:
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The advertising fee shall be as set forth in the cost/budget schedule (as mutually amended from time to time in the form of a schedule).
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4. ADVERTISING SERVICE DEPOSIT:
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Advertiser must maintain a deposit or a revolving deposit account with myEcommerce for each of its selected Advertising Service providers.
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5. SERVICE:
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"myEcommerce Advertising Service" is the process by which myEcommerce will market your site through various online methods, websites, etc. You additionally
understand that clicks to your site, including clicks on the search engines, shopping engines, content sites, etc. will include keywords you select as well as certain
misspellings, singular/plural combinations, and other related search terms that we map to your advertising campaigns. All keyword campaigns will include key terms, titles,
descriptions which you have selected. You are responsible for the accuracy of such terms, titles, and descriptions. You are also responsible for the landing page(s), or
redirect website which links to your advertisements.
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6. CALCULATIONS:
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Advertiser agrees that myEcommerce will be solely responsible for tracking and calculating Click Price ("CP") delivered (User delivered to the advertisers site),
the applicable unit 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 CPs 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 CP price(s) for the
number of CPs delivered.
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7. LATENCY:
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Advertiser understands that, any information or data provided by Advertiser to myEcommerce may not be processed on a real-time basis and may be subject to the latency of
the Internet, the myEcommerce systems and network of third party partners and search engines.
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8. OWNERSHIP OF NON-ADVERTISER PROPERTY.
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Title and full ownership rights in and to the myEcommerce Advertising Service (as defined herein), together with any and all ideas, concepts, computer programs and other
technology supporting or otherwise relating to myEcommerce's operation of the myEcommerce Network and Web site(s) (collectively, the "myEcommerce Materials"),
shall remain at all times solely with myEcommerce and/or with the respective manufacturer or author. Advertiser acknowledges that it has not acquired any ownership
interest in the myEcommerce Materials and will not acquire any ownership interest in the myEcommerce Materials by reason of this Agreement.
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9. YOUR SITE:
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You hereby acknowledge that myEcommerce is not responsible for the maintenance of your Web site(s) nor is myEcommerce responsible for order entry, payment processing,
shipping, cancellations, returns or customer service concerning orders placed on Advertiser's Web site(s). You must update your search listings if any information is not a
current and accurate description of information available on your Web site. You further acknowledge that your site does not contain any myEcommerce owned or licensed
content, including but not limited to, any myEcommerce search listings, except pursuant to a separate signed affiliate agreement with myEcommerce.
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10. ADVERTISER REPRESENTATIONS AND WARRANTIES:
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Advertiser represents and warrants to myEcommerce 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:
comply with the Advertising Guidelines as may be in effect from time to time, and located at www.myEcommerce.biz, or such successor URL as myEcommerce may
subsequently designate; do not violate any applicable law or regulation; do not infringe in any manner any third party rights, including, without limitation copyright,
patent, trademark, trade secret or other intellectual property right or right of privacy or publicity; are not false or misleading; have not and will not result in any
consumer fraud, product liability, breach of contract, injury, damage or harm of any kind to any person or entity; are not defamatory, libelous, slanderous, or
threatening; are free of viruses; do not contain, promote or offer any form of spyware, adware or other advertising or information collection software and/or do not
contain, link to or promote any of the following: violence, hate crimes (whether racial or otherwise), illegal activities, discrimination based on race, sex, religion,
nationality, disability, sexual orientation or age.
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11. ADVERTISER COVENANTS:
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Advertiser further agrees to perform as follows:
* Advertiser will not hold myEcommerce 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 myEcommerce 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, myEcommerce 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 adult materials, 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.
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12. ADVERTISER INDEMNIFICATION OBLIGATIONS:
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Advertiser agrees to indemnify, defend and hold harmless myEcommerce, its distribution partners, its licensors and licensees, its parent company myEcommerce, Inc. 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. myEcommerce will notify Advertiser of any claim, action or demand for which indemnity is required in the reasonable opinion of myEcommerce and will cooperate
reasonably with Advertiser at Advertiser's expense. At the election of myEcommerce, Advertiser shall advance to myEcommerce amounts in satisfaction of such Claim, which
myEcommerce may hold in escrow pending resolution of such Claim. The law firm Advertiser chooses to defend myEcommerce must be experienced in defending similar claims and
will be subject to myEcommerce's approval, which will not be unreasonably withheld. Advertiser may not settle any lawsuit or matter relating to the culpability or
liability of myEcommerce without the prior written consent of myEcommerce. myEcommerce 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, myEcommerce shall have the right
to set off any liability of Advertiser to myEcommerce with respect to a Claim against any amounts held on deposit with myEcommerce by Advertiser.
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13. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER:
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Advertiser acknowledges and agrees that it will not hold myEcommerce 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. myEcommerce
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. myEcommerce makes no guarantees regarding the accuracy, reliability or completeness of any usage
statistics. In the event that myEcommerce 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 myEcommerce shall be limited to, at myEcommerce'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 myEcommerce 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.
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14. ADDITIONAL ASSISTANCE:
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In the event you request or purchase any Additional Assistance, which may include, without limitation, adding tracking
codes or making other changes to your Web site, in connection with myEcommerce Advertising Service, you agree to provide myEcommerce with access to perform the requested
or purchased Additional Assistance. Advertiser acknowledges that any Additional Assistance provided by myEcommerce is also subject to the Limitations of Liability in this
Agreement..
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15. NOTICES/TERMINATION :
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Except as explicitly stated otherwise, any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall
be deemed to be delivered via our Support Helpdesk (https://www.myecommerce.biz/helpdesk/)
Jurisdiction/Arbitration
This Agreement and any separate agreements whereby myEcommerce Inc provides you with
services, shall be governed by and construed in accordance with the internal laws of the State of California, excluding that body of laws known as choice of law or
conflict of laws. Subject to the provisions of this Section, all disputes, controversies or claims (except civil wrongs or criminal acts, intentional or otherwise,
committed by you) arising out of or relating to this Agreement will be resolved through mandatory binding arbitration conducted in Los Angeles, California, before
J.A.M.S./ENDISPUTE or its successor ("JAMS") pursuant to the United States Arbitration Act, 9 U.S.C. Section 1, et seq. (the "Act"); and (iii) this
Agreement. The arbitration will be conducted in accordance with the provisions of J.A.M.S.’s Streamlined Arbitration Rules and Procedures in effect at the time of filing
of the demand for arbitration (the "JAMS Rules"), subject to the provisions of this Section. The terms set forth in this Agreement will control in the event of
any inconsistency between such terms and the JAMS Rules. The parties will cooperate with JAMS and with each other in promptly selecting a single arbitrator from JAMS’s
panel of neutrals. If the parties fail to so select an arbitrator within thirty (30) days following the date of either party’s notice of demand to conduct arbitration,
then JAMS will appoint an arbitrator in accordance with the JAMS Rules. The award of the arbitrator will be in writing and will set forth findings of fact and conclusions
of law. Judgment on the arbitrator’s award will be final and binding upon the parties and may be entered in any court having jurisdiction thereof. If for any reason JAMS
or its successor no longer is in business, then the arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration
Association. The arbitrator’s fees will be shared equally by the parties and each party will bear its own costs and attorneys’ fees. All papers, documents, or evidence,
whether written or oral, filed with or presented in connection with the arbitration proceeding will be deemed by the parties and by the arbitrator to be confidential
information of both parties. The arbitrator chosen in accordance with these provisions will not have the power to alter, amend or otherwise affect the terms of these
arbitration provisions or the provisions of this Agreement. Notwithstanding the foregoing, nothing in this Section shall prevent either party from applying for and
obtaining from a court a temporary restraining order and/or other injunctive relief.
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