Raise The Bar marketting - Internet marketing, search engine marketing, email marketing, website promotion

These Advertising Terms and Conditions (“Terms & Conditions”) shall be incorporated by reference into and made a part of any insertion order (the “Insertion Order”) submitted to Raise The Bar Marketing (“Company”) by the Business set forth in the Insertion Order. All Insertion Orders are subject to acceptance by Company. Company reserves the right to refuse or cancel any Insertion Order, without cause, at any time. The Terms & Conditions, which are subject to change at any time, with or without notice, and the Insertion Order shall be collectively known as the “Advertising Agreement” or “Agreement.

1. Advertising

(a)

In connection with each Insertion Order, Company will establish an advertising campaign for Business (the “Campaign”) for the amounts (“Campaign Budget”) and duration set forth in the Insertion Order, subject to adjustment as set forth herein. Business agrees and understands that Company may take up to 10 business days to review the Campaign and may require further input from Business, in which case the date that Ads are live with one or more Publishers (the “Actual Start Date”) may be later than the Target Start Date set forth in the Insertion Order. In addition, Business acknowledges that Publishers may take several additional days to distribute the Campaign through their network and publications. Subsequent change request by business may take up to 10 business days to be reflected in the Publishers’ sites. Company shall have no liability, and Business shall not be entitled to terminate this Agreement other than as set forth in Section 6, as a result of any such delays.

(b)

Company shall insert advertising and manage the Campaign for the number of cycles specified on the Insertion Order. “Cycles” shall refer to the amount of time required to spend each unit of Campaign Media set forth in the Insertion Order. Because Company has limited control over the amount of Advertising actually displayed by Publishers in any time period, the duration of a Cycle may be shorter or longer than a calendar month.

2. Fees
Business agrees to pay the following fess, in the amounts set forth in the Insertion Order, in accordance with Section 3:

(a)	“Campaign Media” refer to advertising, in whatever format (“Advertising” or “Ads” placed with online or offline businesses (“Publisher”) that accept advertising orders from Company. The total fee for Campaign Media is defined as the amount per cycle times the number of cycles and are set forth in the Insertion Order. Company reserves the right to change the amount it charges for its Management Fees at any time, said changes to be applicable to upon execution of new Insertion Order(s).
(b)	“Campaign Management / Tracking” fees (“Management Fees”) shall refer to the amount per cycle charged by Company for managing and/or tracking Campaigns. These Management Fees are in addition to the Campaign Media. The total Management Fees are defined as the Management Fees amount per cycles times the number of cycles and are set forth in the Insertion Order. Company reserves the right to change the amount it charges for its Management Fees at any time, said changes to be applicable to upon execution of new Insertion Order(s).
(c)	“Campaign Setup” fees are defined as one-time fees to setup and implement the Campaign(s) as set forth in the Insertion Order.
(d)	“Destination Page Setup” fees are defined as optional one-time fees for setup or delivery of a Website or Campaign Landing Page as set forth in the Insertion Order.
(e)	“Sales Call Analysis and Recommendations” fees are defined as optional one-time fees to provide consulting advice on Business’s salespersons’ handling of sales calls tracked and recorded by Raise The Bar technologies. Unless otherwise specified on the Insertion Order, consulting advice is billable at $250 per hour and the total number of hours shall be equal to the amount of the fee divided by the rate per hour.
(f)	Company makes no guarantee with respect to usage, visit, or cost per visit statistics for any Ads. Business acknowledges that any such statistics provided by Company shall be conclusive and binding on Business for all purposes of this Agreement and not subject to review or challenge by Business for any reason.
(g)	All fees are subject to change upon notice to Business, but Advertising rates (which are set by Publishers) are subject to change at any time without notice.

2. Payment Terms

(a)	Initial payment shall be made at the time the Insertion Order is accepted by Company. Unless otherwise noted on the Insertion Order, Business’s credit card will be charged for each Cycle in advance of the commencement of the Cycle.
(b)	Company may, in certain cases, accept payment after the Advertising has been placed. In that event, Company will deliver invoices monthly, reflecting all campaign activity during such period. Business shall pay all invoices within 14 days of delivery, and any amounts not paid when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).
(c)	In the event of any failure by Business to make payment, including any denial of the payment methods set forth in Section 3(a). Business will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collection such amounts.

2. Tracking Information

(a)	Business agrees that Company may apply certain tracking solutions in the Business’ Campaign in an effort to provide statistics to Business. Specifically, Business agrees that Company has the right, but no the obligation, to do the following for each Campaign: (i) Provision “Tracking Phone Numbers” that will be displayed to the user in lieu of the Business’ phone number and which will forward to the Business’ phone number; (ii) Substitute Business’ email address(es) with email form(s) in order to be able to track emails associated with Campaign; (iii) Require users to provide registration information in order to print a Business’ coupon; (iv) Deploy click tracking code to rack the pages that users may access as a result of the Campaign.
(b)	Business agrees and understands that Company is not responsible for the original phone numbers and email addresses entered by Business or those to which the Tracking Phone Numbers and email form(s), respectively, will forward. Furthermore, Business acknowledges that, for local Business phone numbers, Company will first try to provision a local Tracking Phone Number, but , in the event such a local Tracking Phone Number is not available, Business hereby gives Company permission to provision a toll free Tracking Phone Number instead. Business further agrees that, as part of provisioning Tracking Phone Numbers, Company has the right, but not the obligation, to turn on enhanced phone tracking features. Those features may include, but are not limited to: call review (whereby a recording of the inbound phone call is made and stored for review by Business for a period of time to be determined solely by Company); caller ID (whereby the phone number of the caller is used to look-up their name and address). In the case of call review, Business hereby agrees and understands that an initial recording may be played to callers prior to the completion of calls notifying the caller that the call may be recorded. The exact message to be played to the callers is at the sole discretion of Company or Company’s vendors.
(c)	“Destination page” shall refer to the website that users will visit when they click on one of the Business’ Ads. Company currently provides two Destination Page option: (i) with a “Standard Offer Page,” Company provides Business with a basic website based on information provided by Business. Business aggress that Company may restrict the ability of Business to modify or request modifications to Business’ Standard Offer Page once the Campaign is running. Business agrees that Company has the right, but not the obligation, to review and modify any and all content on the Standard Offer Page, whose content – other than any content substituted by Company pursuant to Section 4(a) – remains the sole responsibility of Business; (ii) With an “Existing Website”, Business agrees that Company will direct all users who click on Business’ Ads to a website owned and operated exclusively by Business. Business hereby gives Company permission – during the duration of the Campaign – to do one or more of the following for users visiting the Business’ website as part of the Campaign ONLY: (i) substitute Tracking Phone Numbers for the Business’ website phone numbers; (ii) substitute Tracking Email forms for the Business’ website email addresses; (iii) place click tracking code on pages (URLs) specified by Business; (iv) place a frameset above the Business’ website with the Tracking Phone Numbers and Tracking Email from link as well as additional pertinent Campaign information; (v) place a frameset above the Business’ website with links to the Company’s website, including but not limited to, the Company’s Local Offers Directory. Business agrees that users visiting the Business’ website other than as a result of the Campaign will not see any of the above substitutions or modifications. Business agrees that Company may provide a mirrored or proxied version of the Business’ website (“Mirrored Site”) and that, in order to do so, Business’ website must be operational, functional, accessible through the Internet. In addition, Business agrees that, in order for Company to provide the functionality associated with the Mirrored Site, the URL visible above the Mirrored Site to users clicking on the Business’ Ad will reflect the website address for the Mirrored Site and NOT that of Business’ website. Business agrees that Company is in no way responsible for the operation and functionality of the Business’ website.

Credits and Rebates
Business may be offered financial credits to be applied to future Campaigns (“Campaign Credits”) in the following instances:

(a)	If the actual dollar amount of Campaign Media utilized at the end of a Campaign is less than the amount paid in advance by Business, then Business may be allocated a Campaign Credit in the amount of such difference, in Company’s sole discretion.
(b)	One or more Publishers may issue rebates to Company, in the form of cash, credits or discounts, for promotional purposes, per negotiated agreements with the Company, due to irregularities in Publishers’ systems or otherwise. Company may, in its sole discretion, allocate Campaign Credits to affected Businesses, in whatever from Company deems appropriate. Business acknowledges that Company is not obligated to offer any such credits, rebates, etc. to Business and that if Company does offer any such rebates, credits, etc., that Business shall not be entitled to any more than its pro rata shares, based on all Campaign Media placed by company for all of its advertisers with such Publisher(s) during the relevant periods(s).
(c)	The terms and conditions applicable to any such Campaign Credits shall be communicated to Business at the time such Campaign Credits are issued.

Cancellation and Refunds
Once an Insertion Order has been accepted by Company, Business will be responsible for full payment of all fees related to the Campaign. If Business cancels the Campaign for any reason (other than as set forth in the next sentence), all fees for the remainder of the scheduled Campaign shall be immediately due and payable, and pre –paid fees shall be forfeited.

Advertising Information

(a)	Business shall provide Company with true, accurate and current information for all Ads placed with Publishers. Business will provide all material for the Advertising in accordance with Company’s policies in effect from time to time, including without limitation the manner of transmission to Company and the lead-time prior to publication of the Advertising. Business agrees that Company has the right but not the obligation to make modifications to Ads prior to their delivery to Publisher and further understands that, once Ads are delivered to Publisher, Business may be limited in its ability to make further modifications to said Ads. Business hereby grants to Company a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display transmit and distribute in accordance herewith the Ads and any derivative works based thereon created by Company hereunder.
(b)	All contents of Ads are subject to Company’s approval. Company reserves the right to reject or cancel any Ad, agreement, URL link, or Publisher position commitment, at any time, for any reason whatsoever (including belief by company that any placement thereof may subject Company to criminal or civil liability). This right to refuse a listing does not constitute endorsement of any Ad that is accepted by Company, nor does it constitute a warranty that Company will continue to run an Ad once accepted. Company has no obligation to inspect ads or to reject ads that it inspects for any reason.
(c)	Company reserves the right to modify Ads, including the associated keywords, target geographies and Publishers, consistent with Business’ objectives, at any time, even while a Campaign is active.
(d)	Company reserves the right to modify Ads, including the associated keywords, target geographies and Publishers, consistent with Business’ objectives, at any time, even while a Campaign is active.
(e)	Business may select certain individual words or word phrases (“Keywords”) to be used in the Campaign. Business agrees that Company, while it will take all reasonable efforts to promote these Keywords at the Publishers, makes no guarantee – financial or otherwise – that all Keywords will be advertised, particularly if advertising all Keywords would result in exceeding the Campaign Media amount in the Insertion Order. In addition, Business agrees that the rules for displaying Ads when certain Keywords are entered by a user at a Publisher are controlled by the Publisher and, as such, Business agrees that Company makes no guarantee – financial or otherwise – about when or where Ads will be displayed when certain Keywords are entered by a user at a Publisher.
(f)	Business aggress that, while Company will use its best efforts to place Ads in the target geographies specified by Business, Company is not ultimately responsible for the display of Business’ Ads and, as such, cannot guarantee that the Business’ Ads will only or primarily be displayed to people in the target geographies. Business acknowledges that Publishers may use varying means to detect where people are located when determining whether to display an Ad, including, but not limited to: (i) IP targeting, (ii) user registration information; and (iii) explicit geographic search queries made by the user.
(g)	Positioning of Ads within the directory contained on the Company’s website (the “Company Directory”) or on any page of Company’s website is at the sole discretion of Company. Positioning o Ads on Publisher sites is at the sole discretion of Publisher.
(h)	Business may not resell, assign or transfer any of its rights hereunder except that valid Campaign shall remain valid even upon sale of Business to another company or upon cessation of Business. Except upon sale or cessation as described herein, any attempted by Business to resell, assign or transfer such rights shall result in immediate and automatic termination of this Agreement, without liability to Company, and all payment due under the Insertion Order shall be immediately due and payable, and pre-paid fees shall be forfeited.
(i)	Company shall determine, in its sole discretion, which online or offline businesses that accept advertising order from Company (“Publishers”) to use in connection with any Campaign. Business acknowledges that Company does not produce, operate or transmit the Internet sites or services on which Ads may appear – with the exception of the Company Directory, and that Company acts only as a sales representative or reseller of advertising inventory or listing services for the operators of such Internet sites or services.
(j)	Company makes no representation, warranties or guarantees of any kind as to the level of sales, purchases, clicks, sales leads or other performance the Business can expect form the Advertising.
(k)	Business understands that Company is under no obligation and may not be able to provide any samples of Ads in the context of any Publisher’s website of Company’s Directory.

Business Representations; Indemnification

Business represent and warrants to Company that Business holds all necessary right (including the right to use all information, names, trademarks and search terms it provides or includes in its Ads) to permit the use of the Advertising by Company for the names, trademarks and search terms it provides or includes in its Ads) to permit the use of the Advertising by Company for the purposes contemplated under this Agreement including, without limitation, any URLs, websites and content utilized in connection with Campaign Tracking; and that the use, reproduction, distribution, transmission or display of the Ads, any data regarding users, and any material to which users can link, or any products or services made available to users, through the Ads will not (a) violate any criminal laws or any rights of any third parties or (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. Business agrees to indemnify, defend and hold Company harmless from and against any an all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (I) breach (or alleged breach) of any of the foregoing representation and warranties, or (ii) any third party claim arising out of or in connection with use of or access to the Advertising or any material to which users can link, or any product or service made available to users, through the Advertising or to which the Advertising relates. Further, Business agree to indemnify and hold Company, and its subsidiaries, affiliates, officers, agents, co-branders or other partner, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of content Business submits, posts, transmits or makes available through the online or offline services provided by Company (collectively, the “Service”), or Business’ use of the Service, connection to the Service, violation of this Agreement, or violation of any rights of others.

Agency

Business further represents and warrants that, in the event it is purchasing advertising on behalf of another business, it has been authorized by each such business to act as its agent in all respects relating to the Service and this Agreement, including, without limitation, the making of any elections or giving of any consents. Without limiting the generality of the foregoing, Business agrees on behalf of each such business that such business has been made aware of the Terms and Condition and hall be bound by all of the terms and condition of this Agreement. Business and each such business shall be jointly and severally responsible.

Renewal

Renewal terms are specified on the Insertion Order. Unless waived by Company, in its sole discretion, reinstatement after cancellation shall be subject to Campaign Setup Fees and any other fees applicable to new Campaigns.

Confidentiality

Business shall not disclose the contents or existence of this Agreement to any third party (other than its employees and representatives who are made aware of an agree to this restriction) without Company’s prior written consent. Company shall be permitted to identify Business as a Company client and may use Business’s name in connection with Company’s marketing materials. Subject to the prior approval of each party, Company may elect to issue a join press release announcing the Business’s marketing partnership with Company, which approval shall not be unreasonable withheld.

Termination

Company may immediately terminate Business’ account and access to the Service, with or without cause of any type or nature. Except as expressly provided in the Agreement, Company shall not be liable to Business or any third-party for any termination of Business’ account or access to the Service. Provisions of this Agreement including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations shall so survive.

Limitation of Liability

(a)	In the event that Company fail to publish an Ad in accordance with this Agreement, or in the event that Company fails to spend, on behalf of the Business, the full Campaign Media, or in the event of any other failure, technical or otherwise, of such Advertising, the sole liability of Company and exclusive remedy of Business shall be limited to, at Company’s sole discretion, the issuance of a Campaign Credit not to exceed the total Campaign Media spent on Advertising that had contained the error.
(b)	Business expressly understand and agrees that company shall not be liable under this agreement for any indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses (even if company has been advised of the possibility of such damages). Regardless of the cause of such damages, without limiting the generality of the foregoing, company shall have no liability for damages resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alternation of your transmissions or data; (iv) statements or conduct of any third party on the service; or (v) any other matter relation to the service of this agreement. In no event shall company’s aggregate liability under this agreement arising out of or in connection with any campaign, whether in contract, tort or any other theory of liability, exceed the amount actually received by company from business for such campaign.
(c)	Business agrees that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or 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.
(d)	Without limiting the foregoing, Company shall have no liability for any failure or delay 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 control of Company. Business acknowledges that Company has entered into this agreement in reliance upon the limitation of liability set forth herein and that the same is an essential basis of the bargain between the parties.

General

(a)	Business acknowledges that no Company personnel are authorized to make any modifications to these Terms and Conditions or to make any estimates that Business may rely on and that Business is not relying upon any such modification or estimates or any representations, warranties or guarantees other than as expressly stated herein.
(b)	This Agreement and the relationship between Business and Company shall be governed by the laws of the city of Los Angeles in the state of California. Any action by either party hereto arising out of or in connection with this Agreement or the Service shall be brought in a court of competent jurisdiction located in the county of Los Angeles, State of California.
(c)	This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. These Terms and Conditions may not be amended, supplemented or modified orally, but only by an agreement in writing signed by each of the parties hereto. In the event any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, the remaining provision of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted.
(d)	The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or Interpretation of this Agreement or Terms & Conditions. The provisions of this Agreement shall be construed according to their fair meaning and neither for nor against any party hereto irrespective of which party caused such provision to be drafted.
(e)	In the event that Company’s website has any terms (including without limitation in any “click through” agreements) that are inconsistent with the provisions of this Agreement, this Agreement shall take precedence; provided that any such agreements shall otherwise control with respect to any actions or activities outside of the domain of this Agreement.