smallBUSINESSAZ.com Terms & Conditions for Advertisers
1. This is an agreement between smallBUSINESSAZ.com LLC ("we", "us", and "our") and the customer ("you" and "your") for us to fulfill your order for advertising in our online directory. This agreement consists of the order and these Terms and Conditions for online advertising. Except as otherwise expressly provided in these Terms & Conditions, in the event of any conflict between the Terms of the Order and of these Terms & Conditions, the Order shall control.
2. The term of this agreement commences on the date of execution or acceptance by you ( by either written or electronic notification) by placing your Order with us and shall (subject to our right hereunder to terminate or suspend our performance or remove your listing under circumstances specified in this agreement) continue until we have fulfilled the designated subscription term as specified upon acceptance. Unless otherwise provided in the order and except as provided below in these Terms and Conditions, upon expiration of the Initial Term, the term of this Agreement shall not be renewed for a "Renewal Term" unless you or we notify the other to do so. All services provided during the Renewal Term will be subject to the then-current Terms and Conditions, pricing and other terms for Online Advertising available on our Web site (such then current Terms and Conditions being referred to herein as this Agreement). If a renewal agreement is not agreed upon prior to 30 days of expiration you will no longer have a definite spot secured in this directory.
3. You represent and acknowledge that you are entering into this agreement to obtain the advertising products for your own benefit and not for the benefit or on behalf of any third party, including, but not limited to, any of your shareholders, partners, owners, employees, agents or affiliates. However, each of our distribution or fulfillment vendors or internet search engines on which we place your advertising (each, a "Distribution Site") is an intended third-party beneficiary of your obligations hereunder that relate to advertising products and may independently enforce each obligation directly against you.
4. All transactions are conducted through Google Checkout. All information related to Google Checkout and its security can be found by Clicking HERE. You will make a one time payment for your desired subscription length. Each subscription is good for the length and price as designated at checkout with no exceptions. Although price increases or decreases may occur during your subscription you agree that no additional charges or refunds will occur during your subscription unless agreed to by both parties ("you" and "us"). All subscriptions will be terminated on the date specified in your order confirmation. You will have the option to renew your subscription all the way up until termination date but will forfeit placement if not renewed by that date. You will pay any sales, use or other local, state, federal, foreign or other taxes or governmental fees arising out of or in connection with this agreement, other than taxes based on our net income.
6. If the package you ordered involves the hosting or operation of a web site, the Universal Resource Locator ("URL") therefore must be registered in our name with a domain registrar of our choosing so we may manage the domain while we host or operate the web site. If you do not have a URL, we will procure a URL and will pay the applicable domain name registration fees to the registrar and maintain ownership. We cannot guarantee that any URLs and/or domain names you request for your web site will be available for your use. If none of your requested URLs are available, we will contact you and request alternatives. If you already own the registration for the desired URL, you must transfer the URL to us with a domain registrar of our choosing. If the URL cannot be transferred or you fail to undertake the action we request to cause the transfer, then, in our discretion, we may (but are not obligated to) choose a URL or domain name on your behalf. Upon termination of this agreement or in the event you are in breach of this agreement, any web sites hosted or operated under this agreement may be disabled, in our sole discretion. We will invoice you for all fees payable in connection with the transfer to you of any URL registered in our name that is related to your Web site if you notify us in writing within thirty (30) days after termination or expiration of this agreement that you desire such transfer. We will then promptly transfer such URL to you if you pay such invoice in a timely fashion. If you fail to notify us that you desire such transfer within such thirty (30) days of subscription termination then you waive all rights in or with respect to such URL, and you acknowledge that we may allow the registration for such URL to lapse, may retain and use such URL, or may transfer such URL to a third party, without restriction.
7. We may change search engines from time to time in our sole discretion. You agree that all placements on search engines shall conclusively be deemed to have been approved by you. We cannot provide you with (1) the names of the search engines and/or search engine networks to which your advertisements will be submitted and/or (2) the URL and IP address from which clicks or other Actions are made. We do not guarantee a set amount of clicks to your advertisement. If your advertisement is clicked on, you acknowledge that the clicks may be: from adult sites, from adult-sounding URLs, from sites potentially offensive to you, the result of prohibited or improper purposes, and the result of spiders, robots and other automated or mechanical means. We will make available periodic reports from us or Distribution Sites regarding the number of hits this site receives as a whole. You agree that such reports and the counts contained therein shall be the conclusive, definitive measurements of our performance. No other measurements or usage statistics from any source whatsoever shall be accepted by us or have any applicability to our obligations or your rights under this Agreement.
8. The transmission of any unsolicited commercial e-mail messages through our services is strictly prohibited without the prior consent of the recipient. You acknowledge that it is not possible to avoid placing your advertisements on web sites that display adult content, have adult-oriented domain names, or that are primarily intended as gambling sites, you acknowledge that it is not possible to avoid all such placements, and that we shall in no event have any liability to you of any type or nature as a result of any such placement or any other such placement that may be offensive to you. We may refuse, remove and/or terminate our service due to any content that we deem for any reason (a) may subject us (b) includes obscene, profane, sexual, violent or other inappropriate content, or (c) is otherwise unacceptable in our sole discretion; provided that we have no obligation to review your advertisements and shall have no liability related to the content thereof. If this occurs, you will remain responsible for payment of all amounts to be invoiced for the subscription and will not be entitled to any refund or abatement or any extension of the term of this agreement. Furthermore, you are making the following representations and we will be relying upon them: (a) that you are authorized to advertise and display the requested business, product or service, (b) you are a business, not a consumer, (c) that the content of any advertisement is truthful and not misleading, (d) that you are in compliance with all laws and licensing requirements relating in any manner to the goods or services displayed or to your advertisement, and e) that you have the right to use and publish any requested name, address, trade name, trademark, service mark, picture, likeness, reproduction, endorsement, copyrighted or copyrightable item or other content and that such use complies with all applicable laws, license agreements and other obligations. Without limiting any of our other rights or remedies, you agree to notify us immediately in writing at any time that you discover or suspect that any of these representations is not true and correct in all respects. You assume sole responsibility for the protection of any copyrights, trademarks, service marks, trade names and other intellectual property owned wholly or partially by you or which you are authorized to use or display. If we receive notice or documentation demonstrating that another person or entity contests your right to use or display a name, trademark, service mark or other content, we may reject or discontinue your listing and our services without liability to you until such time you have resolved that dispute with the other party to our satisfaction. As to your profile we create for you, whether in whole or in part, and any derivative work that we create from your content, you acknowledge that we are an author and assign to us all rights in and to any independently copyrightable contribution you might have made to the advertising. You further acknowledge that we retain all right, title and interest, including the copyright, in such advertising and that neither you nor we intend for such advertising to constitute a joint work. You grant us a nonexclusive license during the term of this agreement, including the right to sublicense, to copy, distribute, create derivative works based upon, publicly display, publicly perform and otherwise use any trademark, service mark, graphics, text or other content you provide to us in connection with our performance of our obligations under this agreement. Upon termination of this agreement, we are not obligated to return any of these works to you.
9. We may redesign or modify the organization, structure and/or "look-and-feel" of our respective web site and published set of headings and directories at any time and without notice. Unless expressly provided on your order, we make no representation or warranty with respect to traffic or usage statistics regarding actions on our site or the levels of impressions, clicks, or click-through rates or the quality or conversion rate for any advertisement. An "impression" means each occurrence of a display of an advertisement. We will not have any liability to you and you will remain responsible for all moneys owed to us should there be an interruption in our web site or other interruption in our services hereunder for any period of time, although we may, in our sole discretion, issue credits or extend the term of this agreement in the event of interruptions lasting several days or longer.
10. EXCEPT AS EXPRESSLY PROVIDED IN THE ORDER, WE DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES TO YOU OF ANY KIND, EITHER EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE), REGARDING THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF THE ADVERTISEMENTS OR ADVERTISING PRODUCTS, LINKED SITES, ANY SITE WE MAY CREATE FOR YOU, OR OTHERWISE UNDER OR RELATED TO THIS AGREEMENT.
11. You may not resell, assign, transfer or delegate any of your rights, duties or obligations without our prior written consent, which we may grant or withhold in the exercise of our absolute and sole discretion; in the event we give such consent, the assignee must, without any reservation, assume all of your rights, duties and obligations. Any attempt to resell, assign, transfer or delegate such rights, duties or obligations without our prior written consent shall constitute a breach of this agreement and shall be of no force or effect. We reserve the right to subcontract performance of our obligations hereunder or to assign or otherwise transfer this agreement or any of our rights, obligations or duties hereunder to any person or entity at any time.
12. All of our notices, demands and other communications must be in writing and will be deemed to have been given (a) if mailed by certified mail, postage prepaid, (b) if delivered by overnight courier, (c) if sent by facsimile transmission and such transmission is confirmed as received, or (d) if sent by electronic mail, and such message is confirmed as received, in each case to the address, fax number or email address specified on the Order for the recipient of such notice. All of your notices, demands and other communications must be in writing and will be deemed to have been given (a) if mailed by certified mail, postage prepaid or if delivered by overnight courier, to our address as shown on our web site.
13. WE SHALL NOT HAVE ANY LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE ADVERTISING PRODUCTS FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE, LOSS OF GOODWILL, THE REJECTION OR REMOVAL OF ANY ADVERTISING CONTENT, ANY DELAY IN DISPLAYING OR OUR FAILURE TO DISPLAY CONTENT, OR OUR FAILURE TO PERFORM SERVICES. WITHOUT LIMITING THE PROVISIONS OF SECTION 13, IN NO EVENT SHALL OUR LIABILITY FOR MONETARY DAMAGES EXCEED THE AMOUNT YOU HAVE ACTUALLY PAID TO US FOR THE ADVERTISING SERVICES WITH RESPECT TO WHICH SUCH LIABILITY AROSE. You acknowledge and agree that the provisions of this agreement that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of this agreement and are fundamental to the parties' understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions of this agreement and shall be enforced regardless of any breach hereof or other occurrence or condition relating in any way to this agreement or the advertising service. Without limiting the generality of the foregoing, YOU AGREE THAT ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS OF CONSEQUENTIAL DAMAGES OR OTHER DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID, EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCES THAT CAUSE ANY EXCLUSIVE REMEDY UNDER THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. The limitations contained in this Section 13 apply regardless of the form of action, including actions in contract, tort (including negligence), and strict liability.
14. If we breach our obligation hereunder to fulfill any advertising product or breach any other obligation hereunder, we will make commercially reasonable efforts to fulfill such advertising product at a later date on the same or substitute site or internet search engine or otherwise reasonably to cure such breach. THE FOREGOING CONSTITUTES OUR SOLE OBLIGATION AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH BY US OF THIS AGREEMENT (EITHER DIRECTLY OR THROUGH A FAILURE OF PERFORMANCE BY US).
15. In no event shall we have liability or be deemed to be in breach hereof for any failure or delay of performance resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, network failure, riot, explosion, embargo, strikes (whether legal or illegal), terrorist act, labor or material shortage, transportation interruption of any kind or work slowdown or any other condition not reasonably within our control. Your payment obligations shall continue during any event of force majeure.
16. You agree to indemnify us and hold us harmless from and with respect to any claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, actual attorneys' fees) that may at any time be incurred by us or them arising out of or in connection with this agreement or any advertising products or services you request, including, without limitation, any claims, suits or proceedings for defamation or libel, violation of right of privacy or publicity, criminal investigations, infringement of intellectual property, false or deceptive advertising or sales practices and any virus, contaminating or destructive features.
17. All telephone conversations between you and us about your advertising may be recorded and you hereby consent to such monitoring and recordation.
18. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Arizona applicable to contracts entered into and performed in Arizona by residents thereof. Any action or proceeding brought by you under or relating to this agreement shall be brought in a state or federal court located in the City of Phoenix, State of Arizona, and you hereby irrevocably submit to the personal jurisdiction of and irrevocably consent to venue in such courts for purposes of any such action or proceeding. Any claim against us arising from this agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy by any other party.
19. This agreement constitutes the entire agreement between you and us with respect to the subject matter of this agreement and supersedes all prior written and all prior or contemporaneous oral communications regarding such subject matter. Accordingly, you should not rely on any representations or warranties that are not expressly set forth in this agreement. If any provision or provisions of this agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Except as provided in Section 1, this agreement may not be modified except by writing signed by you and us; provided, however, we may change these Terms & Conditions from time to time, and such revised Terms & Conditions shall be effective with respect to any advertising products ordered after written notice of such revised terms to you or, if earlier, posting of such revised terms and conditions on our Web site.
