Marketing Services Terms & Conditions
Date Last Modified: October 3, 2016
Propel Business Services, Inc. d/b/a Propel Marketing (“Propel Marketing”) provides a range of marketing products and services for businesses under a number of different brand names, including “Propel Marketing” through its website www.propelmarketing.com (“Propel Marketing Website”) and other means (collectively, “Marketing Services”). These terms and conditions (“Agreement”) relate to all services provided by Propel under the “Propel Marketing” brand. Some products and services are offered by Propel Marketing under different brand names, such as “ThriveHive,” and may be subject to additional or separate terms and conditions as disclosed in the description of the particular Marketing Services in this Agreement. If you (“Advertiser”) purchase both Propel Marketing branded Services and other products or services offered by Propel Marketing under different brand names, this Agreement will apply to the Propel Marketing branded Services and designated additional terms and conditions may apply to other branded services and products (such as, for example, the “ThriveHive” suite of services). It is Advertiser’s responsibility to read both this Agreement and any other applicable terms depending on the particular services or products purchased.
Marketing Services may be ordered by an Advertiser via several means: (i) through an Insertion Order, 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 Propel Marketing Website ordering page as available , or (iii) through add-ons to other services offered by Propel under different brand names or through different branded websites, such as the “ThriveHive” services website at www.thrivehive.com (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 agreement to the Order also constitutes its agreement to be bound by this Agreement. 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.
This Agreement is in addition to the standard terms and conditions (“Standard Terms and Conditions”) for general use of the Propel Marketing Website (without purchase of any Marketing Services), and those Standard Terms and Conditions are hereby incorporated by reference into and made part of this Agreement. In the event of any conflict between the Standard Terms and Conditions and this Agreement, the terms of this Agreement shall control.
This Agreement is incorporated by reference into and made a part of any Order between Propel Marketing and Advertiser and shall govern the relationship between Propel Marketing and Advertiser. All Orders are subject to acceptance by Propel Marketing, in its sole discretion. Acceptance of an Order by Propel Marketing will occur upon Propel Marketing’s confirmation in its discretion that all information provided by Advertiser is complete, accurate and in compliance with Propel Marketing’s policies, and receipt of valid payment. Propel Marketing may withdraw acceptance of any Order in its discretion.
Propel Marketing reserves the right to amend, modify or restate this Agreement (the “Amendments”) from time to time at its sole discretion. Propel Marketing 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 the Amendments, which shall be binding once posted on http://www.propelmarketing.com/legal/advertising_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 thereof.
For purposes of this Agreement, all references to “days” will be measured in “calendar days”, unless otherwise noted.
1. Marketing Services.
(a) The Marketing Services include, but are not limited to, the following:
(i) Propel Search. This service is Propel Marketing’s standard search engine marketing product, where Propel Marketing promotes Advertiser through various search engines and creates landing pages. This service is also called “Search Engine Marketing”, “Boost Packs.”
(ii) Propel Display. This service is Propel Marketing’s standard online display advertising product, where Propel Marketing promotes Advertiser through online display advertisements disseminated through Propel Marketing’s network of online publishers and creates landing pages. This service is also called “On Target Display Advertising.”
(iii) Retargeting Display. This service is Propel Marketing’s behavioral targeting product that enables Propel Marketing to display an ad to consumers who have previously evidenced interest in services or similar products or services. This service is also called “Retargeting.”
(iv) Propel Web. This service is Propel Marketing’s web service product, where Propel Marketing creates, designs and hosts websites for the Advertiser. This service is no longer offered for sale to new Advertiser clients as of May 2, 2014, but will continue to be provided to pre-existing clients so long as continuous payment for that service continues without interruption.
(v) Propel E-Commerce. This service is Propel Marketing’s online store and website creation service, where Propel Marketing 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.
(vi) Propel Responsive. This service is Propel Marketing’s website creation service, where Propel Marketing creates, designs, hosts and provides access to a content management system for the website. This service is also called “Website” and “Custom Website.” The Propel Responsive service also has an optional purchase of a Domain Name or URL on behalf of the client by Propel Marketing. The service is only available to Propel Responsive clients. 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.
(vii) Propel Social. This service includes Propel Marketing’s suite of digital presence and social media creation, management and advertising products and services. This service is comprised of a number of Social Media products including “Conversations, “Social Foundation”, “Social Creation”, “Boost Packs”, “Facebook Advertising”, “Social Advertising”, “Social Suite”.
(viii) Propel Mobile. This service is Propel Marketing’s mobile optimization product, where Propel Marketing creates, designs and hosts mobile companion sites for the Advertiser.
(ix) Propel Optimize. This service is Propel Marketing’s Search Engine Optimization product, where Propel Marketing will work with the client to improve their website placement on search engines. This product is also called “Search Engine Optimization.”
(x) Propel Local. This service is Propel Marketing’s local business presence service, where Propel Marketing will create and claim available business presence listings on select websites. This service is also called “Local Profiles”, “Local Profile Claiming.”
(xi) Propel List. This service is Propel Marketing’s local listing cleansing service, where Propel Marketing will distribute updated business contact information to multiple data sources. This service is comprised of a number of List products including “List Optimization”, “Immediate Listing Sync.”
(xii) Propel Rep. This service is Propel Marketing’s reputation monitoring service, where Propel Marketing will provide access to an online reputation monitoring system. This service is also called “Reputation Monitoring and Multi-Location Analytics.”
(xiii) Propel Interactive Video. This service is Propel Marketing’s creating and hosting of custom online video for use on an Advertiser’s website and social media profiles.
(xiv) Propel Logo. This service is Propel Marketing’s creating a custom logo for an Advertiser to use in all of their online and offline promotions. This service is also called “Logo Creation.”
(xv) Tracking Services. This service tracks data and statistics concerning the performance of the Campaigns. As part of the Marketing Services, Advertiser will automatically be provided Tracking Services. This service is also called “Dashboard”, “RPM.”
(xvi) Propel Track. This is a phone call tracking service where Propel Marketing 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).
(xvii) Propel Direct Email and Custom Email Program. These services are Propel Marketing creating and distributing (sending emails) to a targeted group of opted-in email accounts, based on the Advertiser’s desired audience. The Custom Email Program differs only in that it requires a minimum term commitment. This service is also called “Email Marketing.”
(xviii) Propel Live Chat Leads. This service Propel Marketing offers an Advertiser to place a Live Chat box on their website and answer online chats and collect business leads on an Advertiser’s behalf.
(xix) Guided Marketing Platform by ThriveHive, a Propel Marketing Company. This service enables an Advertiser access to a dashboard and platform that provides them metrics on their website activity and digital programs. It provides businesses with numerous applications, including a contact management system, email marketing, website, blogging, social media marketing, email and calendar functions, and lead generation including contact form collection and tracking plus telephone recording (collectively, the “ThriveHive Services”). All or some of the ThriveHive Services can be used as part of this program, and the ThriveHive Services may be bundled with certain Propel Standard Marketing Services (as defined below). The ThriveHive Services are also subject to the additional terms located at www.thrivehive.com/terms-of-service (the “ThriveHive Terms and Conditions”), which are incorporated by reference into and made part of this Agreement.
(xx) Bundled Packages. Propel Marketing offers combinations of the Marketing Services in bundled packages for a single, monthly price. There are different Bundled Packages offered by Propel Marketing including “Digital Foundations Packages”, “Digital Presence Builder Packages”, “Boost Packages”, and “Presence Packages”.
(b) All of the services listed above may be collectively referred to herein as the “Standard Marketing Services”.
(c) As Propel Marketing adds other products and services to its portfolio, such products and services will be referenced on the Order and any special terms and conditions will be posted online at http://www.propelmarketing.com/legal/advertising_terms and incorporated by reference into and made part of this Agreement.
(d) Propel Marketing 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) Propel Marketing is not structured to serve as a “Business Associate” within the meaning of the Privacy Regulations promulgated pursuant to HIPAA. Accordingly, certain services cannot be provided to Advertisers who are considered “covered entities” under HIPAA, to the extent such services would involve Propel Marketing or its affiliates or providers having access to protected health information of Advertisers’ customers.
2. Online Advertising and Listing Services.
(a) Placement. Propel Marketing shall determine, in its sole discretion, on which online properties (the “Publisher”) the marketing content (“Ads”) will run during the course of the Campaign involving Propel Search, Propel Display and Retargeting Display. Advertiser acknowledges that Propel Marketing does not operate or control the Publisher – with the exception of properties owned or operated by Propel Marketing or its affiliates (the “Propel Marketing Properties”). Propel Marketing 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. Propel Marketing makes no guarantees about when or where the Ads will be displayed by the Publisher or by Propel Marketing.
(b) Geotargeting. Propel Marketing 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 Propel Marketing does not guarantee that Advertiser’s Ads will only be displayed in the target locales.
(c) Propel Marketing Properties and Third Party Directories. Propel Marketing may create and post online in the directories of third parties, profile page(s) for Advertiser, which 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.
3. Campaign Logistics.
(a) Set-Up Period.
(i) Campaign Set-Up Period. Advertiser acknowledges and agrees that, with respect to the Marketing Services, Propel Marketing may take up to ten (10) business days or longer to review and prepare the Campaign (or longer, if Propel Marketing has been asked to provide creative services or if Propel Marketing 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 (the “Set-Up Period”). Advertiser further acknowledges and agrees that the Set-Up Period will commence upon Propel Marketing’s receipt of an Order signed by Advertiser and acceptance of the same by Propel Marketing.
(ii) Notice Period. During the Set-Up Period, Propel Marketing may send certain deliverables in draft form (the “Proof”) via email to Advertiser for its review and approval. Advertiser agrees to provide written notice to Propel Marketing either approving or rejecting the Proof (in whole or in part) within five (5) business days from the date of receipt of the Proof (the “Notice Period”). Propel Marketing may send a gallery of templates via email to Advertiser for its review and selection. Advertiser agrees to provide written template selection within the Notice Period, which is five (5) business days from the date of receipt of the Gallery. Advertiser acknowledges and agrees that TIME IS OF THE ESSENCE with respect to approving or rejecting the Proof, or selecting a template from the gallery, within the Notice Period. If Advertiser fails to provide written response within the Notice Period, the Proof will be deemed “approved” by Advertiser and/or Propel Marketing will use its best judgment to select an appropriate template for the Advertiser
(b) Campaign Cycles. The Campaign Period (as defined below and as set forth on the Order) for certain Marketing Services, including, but not limited to, Propel Search, Propel Display and Retargeting Display, will consist of one or more “Campaign Cycles”. The Campaign Cycle for these Marketing Services is the period of time from Propel Marketing’s commencement of applying the Budget (as defined 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, Propel Marketing makes no guarantees with respect to the time it takes to fully utilize the Budget. Advertiser acknowledges that all statistics provided by Propel Marketing 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 The Advertiser and is required to “go-live”. If the information has been requested, and a written 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 The Advertiser, the fulfilled product will be made live. For mobile website design, redirect code will be forwarded to the client with the instructions on how the Advertiser can implement the product themselves, and product will be deemed fulfilled.
4. Fees. 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 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 Standard 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.
(iii) Cycle Payment. “Cycle Payment” refers to the aggregate recurring fees for each of the Campaign Cycles, such as the Budget and the CMT Fees (as defined below).
(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 Propel Search, 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.
Propel Marketing 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 Marketing; 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 Propel Marketing by a Publisher or any third party.
(c) Discount Credits. If Propel Marketing 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) Propel Marketing terminates such Order For Cause under Subsection 6(d) below, then Advertiser will be required to repay to Propel Marketing, within ten (10) days of such termination, the full amount of the Discount Credits used by Advertiser.
5. Payment Terms.
(a) General. Subject to Section 6 below, once an Order has been accepted by Propel Marketing, Advertiser will be responsible for payment of all fees set forth therein, except as may otherwise be provided in Section 6(c) hereof. All payments due hereunder 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 Propel Marketing’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 Propel Marketing 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 the Standard Marketing Services, Advertiser authorizes Propel Marketing 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 other products and services elected by Advertiser, Advertiser authorizes Propel Marketing 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. 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 Propel Marketing in collecting payments under the Order and/or this Agreement.
6. Term; Termination.
(a) Term. Subject to Section 3 above and Subsection 6(i) below, the term of this Agreement shall be the Campaign Period set forth on the applicable Order (the “Initial Campaign Period”), unless terminated sooner as provided herein, or extended by renewal.
(b) Termination by Propel Marketing. Propel Marketing may terminate any Campaign, with or without cause, upon written or email notice.
(c) Termination by Advertiser. Subject to Subsections 4(c) and 6(h), Advertiser may terminate the Campaign during the Initial Campaign Period upon sixty (60) days prior written or email notice to Propel Marketing in accordance with these terms. Such written notice must be received on the Propel Marketing Cancellation Form, which can be accessed at http://www.propelmarketing.com/legal/cancellation_notice_form.pdf. No other means of termination by Advertiser will be valid, except for any different termination rights relating specifically to ThriveHive Services as set forth in the ThriveHive Terms and Conditions. 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 the Order on thirty (30) days prior written notice (the “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 conclusion of the Notice Period. Such written notice must be received on the Propel Marketing Cancellation Form, which can be accessed at http://www.propelmarketing.com/legal/cancellation_notice_form.pdf. 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 Propel Marketing’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 Propel Marketing, unless: (i) Advertiser terminates for cause under Subsection 6(d); or (ii) Propel Marketing 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 Standard 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 Standard 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 Propel Marketing as of the effective date of termination.
(h) Early Termination Payment. In the event 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 (as defined below.
(i) 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 notice on the Propel Marketing Cancellation Form, which can be accessed at http://www.propelmarketing.com/legal/cancellation_notice_form.pdf. 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). The Initial Campaign Period and any Renewal Campaign Period shall be collectively referred to herein as the “Campaign Period”.
(ii) Other Campaign Period Renewals. Any Marketing Services that are not subject to automatic renewal under Section 6(i)(i) above will require execution of a new Order by Advertiser in order to renew, and any early termination of the Campaign Period for such Marketing Services will be subject to the Early Termination Payment outlined in Section 6(h).
(iii) Budget. The Budget will automatically renew for the same Budget set forth on the Order. The Budget will not automatically renew after the expiration of the Campaign Period. In the event there is an unused portion of the Budget after the expiration of the Campaign Period, the Campaign Period will be extended until such Budget is consumed.
7. Advertiser Data; Propel Marketing Platform.
(a) Advertiser Data. As part of the Campaign initiation process and from time to time during the Campaign, Advertiser will provide certain information to Propel Marketing (the “Advertiser Data”), which Propel Marketing will input into one or more third party web-based marketing platforms (the “Platform”). Accordingly, Advertiser hereby permits Propel Marketing to input Advertiser Data, including, without limitation, Advertiser contact information, credit card or ACH information and Campaign information, into the Platform. Propel Marketing will only use such information in connection with the fulfillment of the Standard Marketing Services and as otherwise permitted by the Order and this Agreement. In addition, Propel Marketing may, from time to time, send Advertiser emails regarding Platform updates, Campaign updates, payment reminders, and marketing opportunities relating to Propel Marketing and its commercial partners. Advertiser agrees to receive such emails.
(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 Tracking 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 Propel Marketing. Propel Marketing 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 Propel Marketing. Advertiser will not attempt in any way to reverse engineer, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Platform. Propel Marketing 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.
9. Standard Marketing Services Content; Creative Services; Keywords.
(a) Standard Marketing Services Content.
(i) General Content. Advertiser will deliver all content required for Standard Marketing Services to Propel Marketing within five (5) days from the execution of the Order. If such content does not conform to Propel Marketing’s or any Publisher’s specifications, then Propel Marketing 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, Propel Marketing will then refund any applicable amounts paid in advance. Advertiser acknowledges and agrees that Propel Marketing shall not be liable for typographical errors, incorrect insertions or omissions in any of the content provided under this Subsection 9(a).
(ii) Ad Content. Advertiser will deliver all content required for any Ad to Propel Marketing within five (5) days from the execution of the Order. If such content does not conform to Propel Marketing’s or any Publisher’s specifications, then Propel Marketing 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. 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 rejected, Propel Marketing 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 Propel Marketing. The acceptance of an Ad does not constitute approval or endorsement of the Ad by Propel Marketing or by the Publisher, for purposes of this Agreement or otherwise. Advertiser acknowledges and agrees that Propel Marketing 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, Propel Marketing will, in its sole discretion, either: (A) provided that, such an Error is not the fault of the Advertiser. The foregoing shall be the Advertiser’s sole right and remedy (and Propel Marketing’s sole liability) in the event of an Error.
(b) Propel Marketing Creative Services. Propel Marketing may as part of certain 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 Propel Marketing, as between Advertiser and Propel Marketing, Propel Marketing 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. Propel Marketing 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 Propel Search, Propel Marketing 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 Propel Marketing will use reasonable efforts to use these Keywords, Propel Marketing makes no guarantees that all such Keywords will be used. To the extent that Propel Marketing 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 PROPEL MARKETING AND ITS AFFILIATES FOR ANY SUCH USE. WITHOUT LIMITING THE FOREGOING, ADVERTISER FURTHER ACKNOWLEDGES THAT PROPEL MARKETING MAY, AT ANY TIME AND IN ITS SOLE DISCRETION, REMOVE COMPETITOR KEYWORDS, BUT WILL NOT HAVE THE OBLIGATION TO DO SO.
10. Mobile Messages and Alerts. This section relates specifically to your use of any Propel Marketing text/SMS message and alert services (“Mobile Messaging”). Mobile Messaging provides messages and alerts related to your account and/or promotional content, if applicable. By sending a text message for participation in the Mobile Messaging program or by using our Mobile Messaging program at any time, you are agreeing to these Mobile Messaging terms and conditions.
(a) How to Opt-In. To opt-in to Mobile Messaging, text JOIN (or other designated key word identified in the instructions for the particular Mobile Messaging service) to 776735 from your mobile phone, or you may sign up through your settings page in your account.
(b) How to Opt Out. You may opt out of Mobile Messaging at any time by texting the keyword “STOP” to 776735. If you have registered for Mobile Messaging at propelmarketing.com, you may also have the ability to opt out by signing into your Account and disabling Mobile Messaging. We will send you an OPT OUT confirmation message, which, subject to applicable laws, may also contain contact information and/or instructions as to how you can opt back in to Mobile Messaging if you wish.
(c) Representations. By subscribing to Mobile Messaging, you represent and warrant that you are the lawful owner or otherwise in lawful possession of the mobile device to which you are directing messages to be sent. You represent that all registration and contact information provided during the sign-up process, including the mobile number registered for Mobile Messaging, is accurate and current. If any of your registration or contact information changes, you agree to update it immediately.
(d) Type and Quantity of Messages. Message frequency varies depending on the type of Mobile Messaging service you subscribe to. Notifications may include, without limitation, payment reminders, account status such as lead notifications, offers, contests and other promotional content depending on what available Mobile Messaging service you subscribe to. Propel may use an automatic dialing system to deliver text messages to you. The Federal Communications Commission defines an “automatic telephone dialing system” or autodialer as equipment that has the capacity to store or produce telephone numbers to be called and to call such numbers. 47 C.F.R. § 64.1200. By your subscription to Mobile Messaging, you give your consent to Propel Marketing to use an automatic dialing system to deliver text messages to your enrolled device(s).
(e) Liability Disclaimers. Neither Propel Marketing nor its third party service providers, the Carriers, nor any of their respective affiliates provide any guarantee of any kind as to message delivery, completeness, accuracy, or timeliness, or that Mobile Messaging will be available at all times. Propel Marketing, its third party service providers, the Carriers and their respective affiliates are not responsible for messages that are delayed, undelivered or misdirected.
(f) Availability; Participating Carriers. Mobile Messaging may not be available on all Carriers or on all rates plans. Participating Carriers may include without limitation: AT&T, Verizon- Alltel, Sprint, T-Mobile, US Cellular, MetroPCS and Virgin Mobile but continued participation is not guaranteed and additional Carriers may participate. Please contact your Carrier for availability. Propel Marketing reserves the right to terminate this Mobile Messaging service, in whole or in part, at any time without notice.
(g) Third Party Charges. Even for Mobile Messaging for which Propel Marketing does not charge, message and data rates may apply from your Carrier. Contact your Carrier for rates and terms applicable to your plan. You are solely responsible for any fees or charges incurred from participating in Mobile Messaging. Under no circumstances will Propel Marketing, its third party service providers, agents or affiliates be responsible or liable for any text messaging or wireless service charges incurred by you, any person responsible for charges related to the registered mobile or wireless device, or any person having access to the registered mobile phone or wireless device, or for any overcharge or billing error by or any billing dispute with any mobile or wireless device carrier.
(h) Customer Support. For customer support, text “HELP” to 776735, or email email@example.com.
11. Licenses. During the Campaign Period, Advertiser hereby grants to Propel Marketing and the Publisher a non-exclusive, 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 Existing Site, including, but not limited to, any trademarks, to the extent necessary for Propel Marketing 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, Propel Marketing shall promptly return such property to Advertiser. In addition, Advertiser agrees that Propel Marketing 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 Propel Marketing’s customer list, and in its marketing materials, sales presentations and the Propel Marketing Properties.
12. Advertiser Representations; Warranties and Covenants. Advertiser is solely responsible for any liability arising out of or relating to the Existing Site, 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 Existing Site, the Ads and Linked Content, and any portion thereof, do not and will not: (a) infringe on Propel Marketing’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 and Linked Content, is: (x) lawful and (y) not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities.
13. Indemnification. Advertiser will indemnify, defend and hold harmless Propel Marketing 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’s Existing Site(s), content provided by or created for Advertiser and any of Advertiser’s terms and conditions and/or privacy policies relating to its Existing Site(s), (d) the sale, license or provision of Advertiser’s goods or services; (e) Advertiser’s use of Competitor Keywords; (f) Advertiser’s use of the Tracking Services, including, without limitation, alleged violations of HIPAA or other federal or state privacy or other laws and regulations; or (g) any willful, intentional or negligent act, omission or misrepresentation by Advertiser. Propel Marketing reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Advertiser. If Propel Marketing does assume the defense of such a matter, Advertiser will reasonably cooperate with Propel Marketing 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 Propel Marketing’s prior written consent.
14. Agency. 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 Propel Marketing with any elections and/or consents, executed by a duly authorized representative of the Authorizing Company, relating to the advertising.
15. Confidentiality. 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 Propel Marketing’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 Propel Marketing’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 Propel Marketing in order to permit Propel Marketing to seek reasonable protective arrangements.
16. DISCLAIMER OF WARRANTIES.
(a) PROPEL MARKETING PROVIDES THE PROPEL 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, PROPEL MARKETING’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. PROPEL MARKETING 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. PROPEL MARKETING 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 PROPEL MARKETING’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. PROPEL MARKETING 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 PROPEL MARKETING OR ITS AFFILIATES THROUGH THE PROPEL 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, PROPEL MARKETING MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OR PLACEMENT OF ANY AD OR CAMPAIGN.
(d) TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PROPEL MARKETING 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.
17. 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 PROPEL MARKETING’S CUMULATIVE, AGGREGATE LIABILITY TO ADVERTISER OR ANY THIRD PARTY EXCEED THE NET AMOUNTS RECEIVED BY PROPEL MARKETING HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. IN LIEU OF REFUND, PROPEL MARKETING 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 Propel Marketing 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 Propel Marketing’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.
18. 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 Propel Marketing required under this Agreement shall be provided by registered mail with proof of delivery or by overnight courier, signature required, to Propel Marketing’s then current corporate headquarters address (as shown on www.propelmarketing.com), Attn: General Counsel with a copy sent by email to firstname.lastname@example.org. 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 Propel Marketing. Propel Marketing 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.