Digital Thrive Call Center and Performance Marketing Terms:
1. Introduction. These Terms and Conditions are entered into by you ("Advertiser") and Digital Thrive, LLC. ("Digital Thrive") regarding the display and distribution of advertisement(s) by Digital Thrive("Advertisements") (these Terms and Conditions together with any executed insertion order (an "Insertion Order") will be known as the "Agreement"). The web is an evolving medium; accordingly, these Terms and Conditions may be modified from time to time by Digital Thrive by posting the modified Terms and Conditions in the Digital Thrive Advertiser Center. By continuing to allow Digital Thrive to display and distribute Advertisements after such modified Terms and Conditions have been posted, you agree to these Terms and Conditions, as modified. Please check back regularly to be sure that you have the current version.
2. Advertisements and Advertising Content. Digital Thrive will display the Advertisements, text links, graphical links, or other advertising content provided or approved by Advertiser (together with the related keywords, the "Advertising Content").Advertiser agrees that its Advertisements will conform to Digital Thrive specifications and editorial guidelines. Advertiser is solely responsible for creating the Advertising Content and Advertiser represents that it will choose keywords that do not violate any third party's trademarks, other intellectual property rights or other rights and/or will obtain licenses to use any third party trademarks as keywords. Advertiser grants to (i) Digital Thrive and members of the Digital Thrive Network (as defined below) the right to display, perform, transmit and promote the Advertising Content and to make internal copies as necessary to perform the foregoing (ii) users of Digital Thrive websites, its distribution network members' websites and related Telecommunication Devices (as defined below) (collectively, the "Digital Thrive Network") the right to access and use the Advertising Content and any content and/or services directly linked to the Advertising Content. Advertiser also grants Digital Thrive the rights to periodically crawl Advertiser websites to confirm its web pages are live. Digital Thrive and Digital Thrive Network members may reject or remove any particular Advertisement or Advertising Content for any or no reason. "Telecommunication Devices" shall include any phone, whether mobile, cellular, satellite or landline, or any similar device.
Digital Thrive and the advertiser may enter into a mutual decision and elect to utilize third-party traffic filters. Traffic filtering decisions are made solely by a third party. Digital Thrive makes no representation that third-party filters are accurate nor can Digital Thrive validate the effectiveness of the filtering process. Any advertiser that has elected to have traffic filtered by a third party will see the label "validated-by-third-party" in reporting and analytics. The advertiser will indemnify and hold harmless Digital Thrive against any claims, chargebacks, or losses imposed on, incurred by, or asserted as a result of any third party decisions on traffic filters related to a click.
3. Distribution. Advertiser understands that the Advertisements may appear on various site(s) and Telecommunication Devices within the Digital Thrive Network. The breadth of distribution of the Advertising Content may change during the term of this Agreement for any reason or no reason, including that Digital Thrive may change the members of the Digital Thrive Network from time to time without notice, and Digital Thrive may adopt or discontinue one or more modes of distribution or may change or discontinue sites, site pages or methods or modes of advertisement delivery. Your Advertisements may appear in a variety of contexts on the Digital Thrive Network, such as on search results pages, meta-search results pages, content or article pages, pop-ups or pop-unders, e-mails, phone calls, and in contextually-relevant locations on the Digital Thrive Network. Your Advertisements may also appear in response to a user's behavior. Because of the variety of types of distribution on the Digital Thrive Network and its frequent changes, we cannot guarantee that your Advertisement(s) will appear in any particular type of placement, or that it will be displayed in any particular context or in response to any particular behavior. Where possible, Digital Thrive will discount your bid(s) to the greatest extent possible while still achieving the best possible position (given your bid amount) for your ads on Digital Thrive and its distribution network partners' sites. With respect to the position of your ads on its distribution network partners' sites, Digital Thrive cannot ensure the correct bid pricing to achieve the best possible position (given your bid amount).In all cases Digital Thrive will not exceed Advertiser's maximum bid(s).With respect to keyword-targeted ads, Advertisements may appear for the specific keywords Advertiser selects, as well as for variations on those keywords, as determined by Digital Thrive matching technology.
4. Term; Cancellation or Termination. For accounts with an Insertion Order, the term of this Agreement will be set forth in the Insertion Order. If there is no Insertion Order, the term will end when terminated by either party in accordance with the terms and conditions of this Agreement. Unless otherwise set forth in the relevant Insertion Order (for accounts with an Insertion Order), either party may terminate the Agreement at any time for any reason or no reason upon giving written notice to the other party, with such termination to be effective as soon as Digital Thrive can remove all of Advertiser's Advertisements, but no later than five (5) business days after a party gives written notice. Digital Thrive may terminate this Agreement immediately with or without notice to Advertiser (i) if Digital Thrive is unable to successfully charge Advertiser's credit card for any amount described in Section 5, for credit card accounts, (ii) if any amount invoiced to Advertiser has not been paid when due, for invoice accounts, or (iii) if the Advertiser is advertising products or services from a Digital Thrive Network prohibited category.
Prohibited categories include:
a. Third-party tech support services
b. Pharmaceutical products
a. Invoice Accounts. Digital Thrive will invoice Advertiser monthly for clicks on Advertising Content or calls related thereto. Payment in full will be due fifteen (15) days after the month in which the traffic was delivered. If Digital Thrive, in its sole discretion, determines that Advertiser's credit condition warrants, Digital Thrive may require additional information and/or advance payment. If Advertiser wishes to increase or exceed the budget amount in an approved Insertion Order, Advertiser will submit an electronic mail message to Digital Thrive in order to document Advertiser's agreement to such increase. If any amounts invoiced hereunder are not received by Digital Thrive by the due date, then such charges shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
b. Credit Card Accounts. Advertiser must maintain a valid credit card in its online account. Advertiser authorizes Digital Thrive to charge its credit card for all charges to its account, including any recurring payments. Advertiser understands that this authorization is valid until the effective time of termination of this Agreement. Advertiser is responsible for maintaining up-to-date credit card information in its account. Advertiser's account will be debited for each click on its Advertisements as determined by Digital Thrive click tracking technology. Digital Thrive will charge Advertiser's credit card when the remaining balance of Advertiser's account is less than three (3) times your daily budget to replenish Advertiser's account to at least three (3) times the daily budget amount. If Digital Thrive is unable to refill Advertiser's account because Advertiser's credit card is no longer valid, or for any other reason, Digital Thrive may in its sole discretion (i) reduce Advertiser's campaign budgets so that Advertiser's remaining account budget is less than the remaining account balance, (ii) suspend Advertiser's Advertisements from the Digital Thrive Network, or (iii) terminate this Agreement in accordance with Section 4.Advertiser will promptly update all information to keep its account and credit card information (including a valid credit card number, current billing address, current email address, etc.) current, complete and accurate, and will promptly notify Digital Thrive if its credit card is canceled. If Advertiser's credit card expires, Advertiser will continue to be responsible for payment of charged amounts until Advertiser either changes its credit card information or terminates the account. Advertiser agrees to retain, either by printing or otherwise saving, a copy of this Agreement, which provides the terms of this authorization.
c. All Accounts. All fees described in this Agreement exclude any and all sales, use, property, license, value added, excise or similar tax (and any related duties, tariffs, imposts and similar charges) that may be due as a result of the transactions contemplated by this Agreement. Advertiser will be responsible for paying all such taxes and charges. Advertiser will have only 15 days from the date of an invoice or charge to dispute that invoice or charge; after that time Advertiser will be deemed to have waived any objections to the invoice or charge. Invoices and charges will be determined solely based on Digital Thrive tracking technology. Advertiser may use a third party to track clicks on Advertisements or phone calls related thereto. In the event that the third party's measurements for clicks on Advertisements differ from those tracked by Digital Thrive by more than 10% over an invoiced or charged period, within the fifteen (15) day period following the end of such period Digital Thrive and Advertiser will participate in a reconciliation effort between the third party and Digital Thrive regarding the discrepancy, make a good faith effort to resolve such discrepancy and, if any changes are made to Digital Thrive tracking as a result, amend the invoice or credit the account accordingly. Refunds (if any) are at the discretion of Digital Thrive and will be granted only in the form of advertising credit on the Digital Thrive Network. Advertiser will dispute any invoice in accordance with this section, and agrees not to dispute any charges with its credit card company or otherwise initiate chargeback proceedings if such dispute or chargeback would cause Advertiser to be in violation of this section.
6. Collections. In the event of any legal action or efforts to collect amounts owed by Advertiser under this Agreement, Digital Thrive will be entitled to reimbursement for all costs and expenses incurred, including reasonable court costs and attorney's fees and expenses.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR LOST PROFITS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT THE INDEMNIFIED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED FOR IN THIS AGREEMENT AND NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE TOTAL AMOUNT PAID OR DUE AND PAYABLE (PLUS APPLICABLE COLLECTION AND ENFORCEMENT FEES AND COSTS) TO DIGITAL THRIVEUNDER THIS AGREEMENT.
8. Mutual Indemnification. Each party agrees to indemnify, defend and hold harmless the other party, its subsidiaries, affiliates, partners, officers, directors, employees and agents, from any and all liability, damages, costs and settlements due to claims or causes of action, including reasonable legal fees and expenses (collectively "Liabilities"), arising out of or related to the indemnifying party's breach of any of its representations, warranties or covenants in this Agreement or its performance hereunder. Advertiser further agrees to indemnify, defend and hold harmless Digital Thrive, its subsidiaries, affiliates, partners, officers, directors, employees and agents, from any Liabilities arising from all content or material on any web site associated with any Advertising Content, Advertiser's web site(s) and Advertiser's order processing, billing, fulfillment, shipment, collection and other customer support associated with any products or services offered, sold or licensed through any web site associated with any Advertising Content.
9. Representations and Warranties. Advertiser represents and warrants that (i) Advertiser holds the necessary corporate power, permits and rights to grant all right granted to Digital Thrive under this Agreement; (ii) neither the use, reproduction, distribution, or transmission of the Advertising Content, nor any material or service available on or through Advertiser's website or a Telecommunication Device will (a) violate any foreign, federal, state or local law or regulation or any rights of any third party, (b) contain any material that is harmful, abusive, hateful, obscene or threatening nor (c) constitute false or fraudulent advertisement and that a reasonable basis exists for all claims concerning the performance of products and services offered; (iii) the Advertising Content complies with Digital Thrive advertising guidelines; (iv) Advertiser's execution of this Agreement, and its performance of obligations and duties hereunder, will not violate any agreement to which Advertiser is a party or is otherwise bound; and (v) Advertiser possesses all authorizations, approvals, consents, licenses, permits, certificates or other rights and permissions necessary to display its website(s) and purchase, display and distribute (and allow others to display and distribute) Advertising Content for such website(s).
10. Digital Thrive Representations and Warranties. Digital Thrive represents and warrants that it holds the necessary rights to use the Digital Thrive Network for display and reproduction of the Advertising Content for the purpose of this Agreement. DIGITAL THRIVEMAKES NO OTHER REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING DIGITAL THRIVESERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSES AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. Without limiting the generality of the foregoing, Digital Thrive specifically disclaims any warranty regarding (i) the number of persons who will access the Advertising Content and (ii) any benefit Advertiser might obtain from including the Advertising Content within the Digital Thrive Network. The performance estimates, if any, on the Insertion Order are not guarantees, and actual performance may be higher or lower than the estimates provided. Digital Thrive cannot warrant that the display of the Advertising Content or the link to the advertiser web content will be uninterrupted or error-free. Digital Thrive cannot guarantee that an Advertisement will be displayed in response to any given keyword search. Digital Thrive specifically disclaims any warranty regarding the location and prominence of Advertisements within the Digital Thrive Network, including within any search results displayed thereon. While Digital Thrive specifically disclaims any warranty related to compliance with the Telephone Consumer Protection Act of 1991 ("TCP"), which compliance shall be controlled by third party publishers in the Digital Thrive Network, not by Digital Thrive, however, Digital Thrive requires all such third party publishers to warrant to Digital Thrive their compliance with TCPA.
11. Confidentiality. The terms and conditions of this Agreement, as well as any click-through or user data derived from this Agreement or its performance, are confidential to Digital Thrive, and Advertiser agrees not to disclose them to any third party under any circumstances, except as required by law and with prior written notice to Digital Thrive. Neither party will issue any press release or public announcement of the terms or existence of this Agreement without the prior written consent of the other party, except that Digital Thrive may reference Advertiser as a client and include Advertiser's name in marketing materials.
12. Jurisdiction; Choice of Law. The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in Texas in connection with any action, controversy, claim or lawsuit arising related to this Agreement and any orders to which it relates. This Agreement will be interpreted, construed and enforced in all respects in accordance with laws of Delaware, without regard to its conflicts of laws provisions or to the actual state or country of incorporation or residence of the parties. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. Advertiser further irrevocably consents to the service of any process in any such action or proceeding upon it by the mailing of a copy of such process to the Advertiser to the address then-currently reflected in the Digital Thrive records as Advertiser's principal place of business.
13. Miscellaneous. In event of any express conflict between the provisions of the Insertion Order and these Terms and Conditions, the provisions of the Insertion Order will control. Digital Thrive will not be liable for delay or default in displaying Advertisements if such delay or default is caused by conditions beyond its reasonable control, including without limitation casualty, network or telecoms failures and acts of God. Digital Thrive retains all right to ownership of URL descriptions that it creates, the Digital Thrive directories and all adaptations, translations or modifications thereto. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The failure of either party to insist upon or enforce strict performance by the other party, of any provision of this Agreement, or to exercise any rights under this Agreement, will not be construed as a waiver or relinquishment of such party's right to enforce any such provision or right in any other instance. Advertiser may not assign this Agreement, in whole or in part. Digital Thrive and Advertiser are independent contractors, and neither Digital Thrive nor Advertiser is an agent, representative or partner of the other. This Agreement and applicable Insertion Orders set forth the entire agreement between Advertiser and Digital Thrive, and supersedes any and all prior agreements (whether written or oral) of Digital Thrive and Advertiser with respect to the subject matter set forth herein. In the event that Advertiser and Digital Thrive have signed a separate agreement for the delivery of relevant advertising on Advertiser's platform that is still in effect, or intend to enter into such an agreement while these Terms and Conditions remain in effect, then in the event of any express conflict between the provisions of that other agreement (whether previously or subsequently signed) and these Terms and Conditions, such provisions of that other agreement that conflict with these Terms and Conditions shall be modified such that these Terms and Conditions are agreed to and control. All additional or differing terms and conditions or any other documents or submitted by Advertiser are hereby rejected by Digital Thrive and shall not become part of these Terms and Conditions unless expressly consented to in writing by Digital Thrive stating such consent. Except as set forth in Section 1 above, this Agreement may only be modified, or any rights under it waived, by a written document or online agreement executed by both parties.