Small Business World Web Hosting and Design, LLC (SBWWEB) DBA: BuyMarathonCounty.com
This agreement for “Digital Advertising and Services” is between the “Advertiser” and Small Business Web Hosting and Design, LLC (SBWWEB) “Publisher” and its subsidiaries, if any (herein, “BUYMARATHONCOUNTY.COM” and it’s subsidiary “Shop” websites “SHOPWAUSAUMETRO.COM”, “SHOPRIBMOUNTAIN.COM”, “SHOPEVERESTMETRO.COM”, “SHOPMOSINEE.COM” AND “SHOPCOLBYABBOTSFORD.COM”). Advertising shall be known herein as “Digital Advertising”. Unless referred to individually, any Advertising-related services to be performed by SBWWEB, which may include the placement of Advertising in various media, may be referred to as “Services”.
Electronic acceptance is binding. You agree that all business pursuant to this Agreement may be conducted with you electronically, including invoicing, payment, communication and account or agreement notice.
Advertising and Services
Advertiser is responsible for providing for all information and materials, including the advertising or promotional message(s) that Advertiser desires to have placed, that are made available to SBWWEB by or on behalf of Advertiser.
Publisher reserves the right, on behalf of itself and any of its third-party service providers or publishing network partners (each a “Supplier”), not to place, publish, and/or distribute any Advertising or Ad Materials for any or no reason, including not meeting Publisher’s or Suppliers’ specifications or standards, and Advertiser acknowledges and agrees that neither Publisher nor Suppliers shall be liable for not placing, publishing or distributing any Advertising.
Advertiser will provide Publisher all information, materials, consents, and authorizations necessary for Publisher to place and publish the Advertising or to perform the Services, and will do so in a timely manner. Publisher and/or Suppliers may, but are not required to, alter the Advertising or Ad Materials in order to meet publication specifications with or without notice or obligation to Advertiser. Publisher may take all actions reasonably necessary for the “Fulfillment” of an Order, including but not limited to, displaying, publishing, distributing, or otherwise placing Advertising into the stream of public commerce or making Advertising or a Service accessible to/by an end user.
When Publisher determines Advertising is ready for Fulfillment, Publisher reserves the right to begin Fulfillment, without notice to Advertiser. If Publisher determines that, following an executed Order, Fulfillment of Advertising will be delayed due to Advertiser’s action, inaction or omission, Advertiser waives any rights to review or approve the finished Advertising. Each Advertiser is solely responsible for ensuring its own compliance with regulations applicable to it and/or its advertising.
Information Sharing & Disclosure
SBWWEB does not rent, sell, or share personal information about the advertiser with other people or non-affiliated companies except to provide products or services requested, when we have your permission, or under the following circumstances: We limit access to personal information about you to employees, or business partners, who we believe reasonably need that information to provide products or services to you or in order to do their jobs; we respond to subpoenas, court orders, or legal process, or to establish or exercise our legal rights or defend against legal claims.
Only Publisher’s performance of Services under an Order will constitute Publisher’s acceptance of the Order. The “Term” of this Agreement commences upon Publisher’s acceptance of the first Order and will continue for an initial period as set forth in the Order. After any Term of, or combination of Terms totaling 12 months or more, the Term of this Agreement will automatically renew, unless terminated as set forth in this Agreement.
Cancellation of Orders
Advertiser may cancel this Agreement only by written notice, sent by an authorized representative of Advertiser, by email, to firstname.lastname@example.org, either within the Cancellation Period (as defined below) or thirty (30) days prior to the start of any renewal Term. The “Cancellation Period” during which any effective notice to cancel must be provided is within twenty-one (21) days of execution or authorization of this Agreement for Digital Advertising and Services.
Termination by Publisher
Publisher may terminate this Agreement or any Order, or cancel any Advertising, in whole or in part with respect to the Fulfillment of Advertising by such Publisher, at any time upon written notice, including via email, to Advertiser. If Publisher intends to cease the provision of a particular Service, Publisher may, at its discretion eliminate the listing in totality or substitute the performance of substantially similar Services on the terms and conditions then applicable to such Service. If Publisher ceases to provide a Service and does not substitute a substantially similar Service, then the portions of each Order for the performance of such Service will terminate automatically. Publisher, in its sole discretion, may repurpose and/or reallocate any resources, including Publisher or Supplier inventory or services, which may have been used to provide or support the services, and Advertiser shall have no rights with respect to any such resources and/or services. In addition, Publisher may terminate, remove, and/or suspend any or all Advertising or Services upon Advertiser’s failure to pay any amount when due.
Payment, Billing, and Collections
If Publisher issues an invoice to Advertiser, the invoiced amount will be due in full on or before the due date present on such invoice or, within 30 days after the date of the invoice. All payments are non-refundable. Publisher reserves the right to require full payment in advance or to charge Advertiser a reasonable fee beyond anything specified on the applicable Order for requests that exceed Publisher’s customary services. All charges for Advertising and Services will be due and payable upon Publisher’s delivery of the Advertising or performance of the Services. Advertiser will pay all sales, use, or other local, state, federal, or other taxes or governmental fees arising out of or in connection with this Agreement, other than taxes based on Publisher’s net income. If more than one person/entity requests Advertising under this Agreement or any Order, all such persons/entities will be jointly liable for all charges due and payable under this Agreement.
SBWWEB may issue invoices and receive payments on behalf of BuyMarathonCounty.com and may engage one or more billing agents to do so on behalf of SBWWEB. Publisher may, in any Order or invoice, require that payment be made to an escrow account, lockbox, trustee or other designee to receive payment on behalf of either or both of SBWWEB and BuyMarathonCounty.com, and will only be deemed to have satisfied its payment obligations upon receipt by Publisher’s designee of full payment amount due. Advertiser must ensure that any payment option (e.g. credit card, direct transfer, etc.) which Advertiser elects to utilize remains current and operable throughout the term of the applicable Service. Advertiser shall be responsible for any fees and/or charges that Publisher may levy upon Advertiser because of late or delinquent payments. Late payments will accrue interest at a rate of 1.5% per month (or the highest lawful rate, if less). Advertiser will pay attorneys’ fees and internal and external costs that Publisher and/or its agents incur in collecting any unpaid amounts in addition to a collection activity fee of $25 for each month that Advertiser does not pay Publisher the full amount of charges due by the invoice due date. Advertiser agrees that the collection activity fee is not an interest charge for the time value of unpaid money and recovers costs that are different from the costs recovered by the late payment interest charge. If offered by Publisher, Advertiser may agree, in writing or by electronic authorization, to make single or recurring payments electronically via credit or debit card or by automatic debits to Advertiser’s bank account via automated clearinghouse (ACH). Unless otherwise specified at the time Advertiser agrees to recurring electronic payments, the applicable automatic payment will be deducted on the due date of each invoice. Authorization for recurring electronic payments will remain in full force and effect until thirty (30) days following the date Publisher has received express written notification of Advertiser’s intention to cancel such authorization, and automatic deductions that were submitted for processing prior to the Authorization Termination Date may still be processed. Advertiser hereby releases Publisher and its Suppliers, including any payment processors, from any and all claims arising from the use of any means of electronic and/or automatic payment method, including any associated fees.
Advertiser agrees that Publisher may disclose any or all information it has concerning Advertiser to any third parties, including credit-reporting or collections agencies, for the purpose of assessing Advertiser’s credit or determining a payment plan or method, or for the purpose of collecting outstanding and unpaid amounts. If Advertiser applies for business credit and is denied, Advertiser has the right to a written statement of the specific reasons for the denial, which Advertiser may obtain by contacting Publisher within 60 days after Advertiser is notified of the decision at email@example.com. Publisher will email Advertiser a written statement of reasons for the denial within 30 days of receiving Advertiser’s request.
The federal Equal Credit Opportunity Act prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to enter into a binding contract); because all or part of the applicant’s income derives from any public assistance program; or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The federal agency that administers compliance with this law concerning this creditor is the Federal Trade Commission, Equal Credit Opportunity, Washington, DC 20580.
If Advertiser fails to claim funds remaining on account with Publisher within 180 days of the last date upon which Publisher performed Services under the applicable Order, Advertiser will pay Publisher a reasonable fee for the maintenance and administration of those funds equal to $25 per month. Publisher may deduct this fee from Advertiser’s funds on account until the funds are transferred to Advertiser or exhausted. If Advertiser fails to claim any non-cash credit issued by Publisher within 180 days, Advertiser will be deemed to have waived such credit and will have no claim to the credited amounts.
Incentive Pricing and Bundling
For Advertising and/or Services sold together as part of a package at bundled, promotional, or incentive pricing, Publisher’s commencement of performance of Services provided as part of a Bundle will constitute commencement of performance for all Services within the same Bundle. Cancellation of part of a Bundle will not relieve Advertiser’s obligation to pay the full price for the Bundle. Cancellation of, or failure to pay for specific Advertising or Services which are part of a Bundle may result in incentive pricing reverting to the full, undiscounted rate for all Advertising and Services included in such Bundle, which rate Advertiser shall be obligated to pay.
Advertiser, for itself and any third party with an interest in or to Ad Materials, grants Publisher a nonexclusive, unrestricted, royalty-free license, to use the Ad Materials in Supplemental Advertising, and Advertiser agrees that these General Terms and any applicable Product Terms apply to Supplemental Advertising. Publisher shall be under no obligation to do so, but may from time to time provide notice to Advertiser that Publisher intends to provide Supplemental Advertising to Advertiser, and Advertiser’s failure to object to the provision of Supplemental Advertising shall constitute Advertiser’s confirmation that Publisher is both authorized to provide Supplemental Advertising and also that such Supplemental Advertising is governed by this Agreement.
Other than specific liability alleged to result from the actions of an individual Supplier directly in connection with the performance of a Service by such Supplier, which shall be subject to all waivers and limitations of liability contained in this Agreement, Advertiser generally releases and holds Publisher, its parent(s), subsidiaries, affiliates, and Suppliers, and their respective directors, officers, employees, and agents (the “Publisher Parties”) harmless for any claims, actions, losses, expenses, damages, costs, and/or liabilities that may arise as a result of any other actions or inactions of Suppliers and/or their employees, contractors, or representatives. Any such non-waived or limited claims, actions, losses, expenses, damages, costs, and/or liabilities shall be strictly between Advertiser and the applicable Suppliers.
Warranties, Covenants, and Consents.
Advertiser is a business and not a consumer and it is at all times solely responsible for the truthfulness and accuracy of all of Advertiser’s advertising.
Advertiser warrants and covenants to Publisher Parties that: Advertiser owns or otherwise controls all necessary rights to Ad Materials and any trademark, service mark, logo, name, message, data, image, text, photos, graphics, audio, video or other material or intellectual property contained or embodied in any Ad Materials, including the right to grant the rights and licenses granted herein to the Publisher Parties, and Advertiser will maintain such ownership or control throughout the term of this Agreement, and Advertiser will not, and will not allow any third party to, submit any Ad Materials that, or use the Services in any manner that: violates any law, regulation, or industry guidelines; is harmful to minors, threatening, harassing, abusive, defamatory, slanderous, vulgar, violent, obscene, pornographic, indecent, lewd, libelous, invasive of another’s privacy, or racially, ethnically or otherwise offensive, hateful, or abusive; infringes any third party’s patent, trademark, trade secret, copyright, other intellectual property rights, or other rights; advocates or solicits violence, criminal conduct, or the violation of any local, state, national or international law or the rights of any third party; is deceptive in any way or contains an impersonation of any person or entity or misrepresents an affiliation with a person or entity; provides material support or resources (or conceals or disguises the nature, location, source or ownership of same) to any organization designated by the U.S. government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; and/or reproduces, sells, resells, or exploits for any commercial purpose any portion of, use of, or access to the Services.
Advertiser will not and will not allow anyone working for it to: engage in any form of spamming or improper clicking, impression generation, e-mailing, texting, or marketing in connection with the Advertising and/or Services; access any Publisher Party’s network or system for any purpose other than internal use to access Services and/or manage its accounts.
Advertiser shall be solely responsible for all fees, royalties, and other amounts of any kind or nature payable in connection with Advertising: to record companies, artists, and all other royalty participants resulting from exploitation of any copyrighted materials; to third parties in connection with the use of their names, images, voices, or likenesses as part of any Advertising; and to any and all other third parties with respect to the provision, receipt, or use of Services.
Advertiser hereby provides Publisher with Advertiser’s express consent to receive telephone calls, e-mails, faxes and other communications made or sent by or on behalf of Publisher Parties that are related to Publisher’s services, including future services. Moreover, with respect to such communications, Advertiser acknowledges and agrees that any opt-out of marketing-related communications will not apply to service announcements, administrative messages, or other similar communications sent by the Publisher Parties in connection with the Services.
Advertiser, for itself and any third party with an interest in or to Ad Materials provided to Publisher Parties (whether directly or indirectly provided), grants the Publisher Parties a nonexclusive license, including the right to sublicense, to copy, distribute, create derivative works based upon, publicly display, publicly perform, reproduce, promote, resize, rearrange, modify, and otherwise use the Ad Materials in any media or service, in whatever format, now or in the future, provided that such use is pursuant to this Agreement and/or in furtherance of distribution of Advertising on behalf of Advertiser. In addition, Publisher shall have the irrevocable right to use the Ad Materials in any materials, advertising, promoting, and/or publicizing Publisher’s services and/or products. Except as otherwise provided herein, as between the parties to this Agreement, the applicable Publisher owns all IP Rights in and to the Advertising, the Services and all information, materials, logos, software, or other tools or information used to develop or display the Advertising or provide the Services. Advertiser may not reproduce the Advertising, any medium in which such artwork is distributed or any Publisher-developed artwork or content for any purpose without the express prior written permission of Publisher.
Advertiser Generated Content
Publisher will have no obligation to investigate or confirm, and does not in any way endorse, the accuracy, legality, legitimacy, validity, suitability, or reliability of any content directly generated or controlled by Advertiser, its representatives, employees, contractors (other than Publisher), or agents (“Advertiser Generated Content”), including any of the products, services, offers, deals, coupons, or other promotional materials or representations contained or referenced in the Advertising. Publisher makes no representations or warranties whatsoever concerning any products or services advertised, sold, or provided by Advertiser (including, without limitation, the quality, safety, or legality of such products or services or the sale thereof). Any commercial, sales, use, membership, subscription, affiliation, participation, or promotional relationship Advertiser may create with any third party, including obligations undertaken by Advertiser with respect to payment and delivery of related goods or services, and any other terms, conditions, and warranties or representations associated with such dealings, are solely between Advertiser and such third party. Advertiser will be solely liable to any third party claimant with respect to the content of the Advertiser Generated Content.
Any estimates of performance are provided for informational purposes only, and do not constitute, and shall not be considered, a guarantee of performance or a guarantee of return. Advertiser acknowledges that the essential value of the Services is the dissemination of information facilitating individuals to visit, contact, and/or learn more about Advertiser, and that Publisher may, in its discretion, determine the method, scope and penetration of such dissemination (e.g., scope and penetration of directory distribution, delivery quantities, and geographic coverage of the Services).
No Publisher Party will be bound by, and Advertiser acknowledges that Advertiser is not relying on: any representation or warranty concerning revenue, profit, return on investment, or results to be generated from its Advertising; any representation or warranty regarding either the number, makeup, or distribution of people who will view Advertising and/or the residences or businesses that will access or receive the media containing the Advertising; any representation, warranty, or covenant concerning the quantity, quality and/or validity of traffic, impressions, or interactions with or leads generated by Advertising; any custom or prior course of dealing; or the nature of others’ advertising.
Although Publisher will use commercially reasonable efforts to include any Ad Materials and/or design elements that Advertiser may reasonably request be included in the Advertising, subject to the procedures established by Publisher for that purpose, Publisher expressly disclaims any liability for failure to include, and Advertiser’s payment obligations hereunder shall not in any way be contingent upon inclusion of, any such Ad Materials and/or design elements in the Advertising.
If a third party claims, or if Publisher believes that a third party may claim, that any Advertising or Ad Materials, or the placement or publishing thereof, infringes any third party’s Intellectual Property Rights, Publisher may terminate this Agreement or an Order, in whole or in part, and/or reject, cancel, discontinue, or suspend the Services, in Publisher’s sole discretion, without liability, until Advertiser has resolved the actual or potential third party claim to Publisher’s satisfaction.
Limitation of Liability
In no event will the Publisher Parties’ aggregate liability under this agreement exceed the amount paid under the applicable order for the specific advertising and/or service at issue. Under no circumstances will the publisher parties be liable for special, indirect, incidental consequential, punitive, or exemplary damages, damages relating to loss of profit, loss of income or revenue, or loss of goodwill, for any reason whatsoever, including the result of errors or omissions, the rejection or removal of any advertising, any delay in displaying, publisher parties’ failure to display or distribute advertising, or Publisher Parties’ failure to perform services. Publisher’s acceptance of this agreement and the rates charged for the advertising and other services are based upon the limitation of the Publishers Parties’ liability as set forth herein.
Publisher will not have any liability to Advertiser, and Advertiser will remain responsible for all moneys owed to Publisher, if Publisher’s performance of its obligations is delayed by the occurrence of unforeseeable circumstances: elements of nature, acts of God, acts of war, civil disorders, rebellions or revolutions, sabotage, embargo, government action or order, blackouts, epidemic or quarantine, strikes/labor difficulties, or any other similar cause; or any event or circumstance within the control of, or caused by information provided by, Advertiser or a third party (including Suppliers).
Any claim arising out of an error or omission in Publisher’s performance of the Services must be made in writing by email to Publisher within sixty days of the first occurrence of such error or such claim shall be deemed waived.
Advertiser agrees that this Agreement will be governed by and construed in accordance with, and all matters relating to or arising under this Agreement will be governed by, Wisconsin law without reference to the laws relating to conflicts of laws. Exclusive venue and jurisdiction for all claims and disputes that are not subject to arbitration pursuant to this Section shall be in the state and federal courts. Advertiser hereby consents and submits to the exclusive jurisdiction and venue of those courts and waives any defenses or objections based on the jurisdiction, venue, or convenience of these exclusive venues. In any legal proceeding relating to this Agreement, the parties agree to waive any right they may have to participate in any class, group, or representative proceeding and to waive any right they may have to a trial by jury. Any claim, controversy, or dispute that arises under or relates to this Agreement (other than claims to collect amounts Advertiser owes), including any dispute regarding any Listing, any omissions, incorrect phone numbers or other errors, and any placement concerns, shall be referred by the aggrieved party to binding arbitration under the Commercial Rules of the American Arbitration Association(AAA). The arbitration shall occur in Marathon County, Wisconsin unless mutually agreed to another location. All Digital Ads and/or Services shall be deemed to have been provided in Wisconsin. The arbitration hearing shall be held within 6 months after the filing of the arbitration demand with the AAA. Each party to this Agreement agrees that a final judgment in any such action, claim, dispute, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.