LEGAL

Terms of Service

These Terms of Service ("TOS") are the Terms of Service referenced in the Marketing Program Order (the "Order"), and together with such Order govern the terms under which WebVisible, Inc. ("WebVisible") shall perform the services you requested on the Order. You must acknowledge your acceptance of these TOS by accepting the eSignature agreement. This TOS governs your purchase of WebVisible's services, and in order forms executed by and between the parties ("Order Forms") and/or your online management of any advertising campaigns accessed as part of the services offered by WebVisible. This TOS and any applicable Order, and any Order Forms are collectively referred to as the "Agreement."

1. ACCEPTANCE OF TERMS

This TOS may be updated by WebVisible from time to time without notice to you. The most current version of the TOS may be reviewed at any time at: www.webvisible.com/legal/terms-of-service.php. You are encouraged to frequently review WebVisible's website to review your obligations under the most current TOS. Your continued use of the Service after any such modification thereof constitutes your consent to such modification. In addition, when using particular WebVisible owned or operated services, you and WebVisible shall be subject to any posted policies and guidelines or rules applicable to such services, which may be posted on WebVisible's website from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.

2. DESCRIPTION OF SERVICE

Generally, WebVisible will provide you with assistance in formulating an online marketing program which includes advertising campaigns, creation of suggested ad copy, and purchase of ad placement with various online search engine businesses that accept your advertisements (each entity being a "Publisher", and collectively, WebVisible's services above being the "Service") as part of an overall advertising campaign. Each online advertisement generated and presented through the Service shall be deemed an "Ad," and the overall purchasing decisions for such Ad among Publishers shall be deemed the "Advertising Campaign". You understand and agree that the Service exclusively is made available through the WebVisible website, which allows users of the Service to monitor the performance of your advertising campaigns. WebVisible may, at its sole discretion, determine the Publishers from whom media will be obtained.

You understand and agree that the Service may include certain automatic communications from WebVisible, and you agree to accept such communications, including responses to your advertising from prospective customers, service announcements, administrative messages, and that these communications are ordinary course business communications, of which any current Customer of WebVisible may not opt out.

For each Advertising Campaign, you will provide WebVisible with ad information and ad content ad URLs (the "Content"), and WebVisible will generate as part of the Service a suggested Ad, including ad copy that contains the Content (the "Creative"). As between the parties, you will own all Content, including all intellectual property rights thereto, and WebVisible owns the Creative (excepting the Content contained therein) and the Service in whole and in part, and all intellectual property rights thereto. You represent and warrant that all Content it creates, including without limitation email communications, will be monitored by WebVisible.

The Content provided by you, or any e-mails must not promote, advocate, facilitate or otherwise include any of the following:

Racial, ethnic, political, hate-mongering or otherwise objectionable content;
Violence or profanity;
Pornographic, obscene, sexually explicit or related content;
Material that defames, abuses, is libelous, is tortious or threatens physical harm to others;
Material that impersonates any person or entity;
Any indication that any statements are endorsed by WebVisible or any Publisher, without WebVisible's specific prior written consent;
Any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
Any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. "spamware"), services that send unsolicited advertisements, programs designed to initiate "denial of service" attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet;
Any spoofing, redirecting or trafficking from other websites in an effort to gain traffic;
Any content that infringes upon the intellectual property rights of any third party;
Any material that otherwise infringes upon the rights of any third parties including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy, violation of any anti-discriminatory law or regulation, or any other right of any person or entity
Any material that violates the CAN-SPAM Act of 2003, as amended ("CAN-SPAM"); or
Any illegal activity whatsoever.

Furthermore, you understand and agree that all Ad placements are made subject to the terms and conditions of applicable Publishers for accepting and purchasing such Ads.

As part of the Service, WebVisible will provide you with access to WebVisible's Merchant Center which provides information about your applicable Advertising Campaigns including activity reports. While WebVisible uses its reasonable efforts to ensure that the information available through the Service is accurate and timely, you understand and agree that the Service is provided "as-is" and that WebVisible assumes no liability whatsoever or responsibility for the timeliness, deletion, mis-delivery or failure to store any data provided within or generated through the Service, including any user communications or personalization settings.

You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are s responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Service.

Any new features that augment or enhance the current Service, including the release of new WebVisible products and services, shall be subject to this TOS.

The Services are offered under various product names as identified in the Order Form(s). The Order Form(s) detail the duration of the Advertising Campaign by duration of time (such period shall be deemed the "Online Marketing Program Term"), the classification of your business category and related pricing of such product, and related matters, all as set forth in this TOS and the Order Forms.

Online Marketing Program. WebVisible offers "Online Marketing Program" products which provides an initial purchase commitment for the period set forth in Order Form and thereafter continues at the same price with a monthly renewable term. WebVisible's "Online Marketing Program" product is based on an annual term and price, not a monthly term and price. Due to seasonality, duration of the contract, economic business conditions, consumer sentiment and other factors beyond WebVisible's control, the results of the advertising campaign(s) received per month may vary. WebVisible will use its proprietary technology to monitor performance of Ad buys throughout the Online Marketing Program Term, and targets such Ad buys with Publishers, but based on the elements described in this paragraph, all of which are outside of WebVisible's control, WebVisible cannot guarantee a specific number of leads.

Online Marketing Program Setup. The "Marketing Program Setup" refers to the set-up of the WebVisible services to support your advertising campaign(s). The Marketing Program Setup includes access to your Landing Page, Call Tracking Number(s), Landing Page URL, and Merchant Center.

3. PAYMENT

You agree to pay WebVisible the rates set forth in the Order for the applicable Online Marketing Program package, as set forth on the Order Form

4. YOUR REPRESENTATIONS AND WARRANTIES

You represent and warrant that:

Your products, Website(s) and e-mails are, and shall remain at all times during the term hereof, in compliance with any applicable rules and policies set forth by the respective Advertisers in the Campaigns in which you elect to participate;
You agree not to violate any of the provisions of the CAN-SPAM Act;
You agree not to engage in any illegal activity as defined under federal or state law, whatsoever;
You agree to not use deceit when marketing your products;
You have the right, power, and authority to enter into this Agreement and grant the rights specified herein;
You will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from WebVisible that allows it to measure the performance of creative, calculate rewards and events and otherwise provide the Service ("Site Data");
You will not "frame" or "mirror" any part of the Site, without our prior written authorization;
If instructed to do so by WebVisible and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Creative, Offers and/or Site Data;
You acknowledge that WebVisible does not represent, warrant, or make any specific or implied promises as to the successful outcome of any campaigns;
If You are notified that fraudulent activities may be occurring in connection with or through Your website and/or e-mails, then You are responsible for all associated costs and legal fees resulting from these fraudulent activities; and
You acknowledge and agree that if any errors or undesirable results occur in connection with recording or calculating any successes or otherwise, WebVisible shall not be responsible for any associated losses.

Digital Millennium Copyright Act (DMCA) Infringement Notification

If You believe that any of the materials on WebVisible's website infringe Your copyright, You should notify WebVisible of Your copyright infringement claim in accordance with the procedures described below. WebVisible will process claims of alleged infringement and will take appropriate action as required by the Digital Millennium Copyright Act (DMCA) and other applicable intellectual property laws. Any claimed copyright infringement notifications should be sent to this our designated agent:

[insert contact person]

[insert address]

Email: [insert email]

To be effective, the notification must be in writing and contain the following information (see DMCA, 17 U.S.C. § 512(c)(3) for further details):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
A statement, made under penalty of perjury, that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

5. TERM AND TERMINATION

The term of your Online Marketing Program, and the duration of the Services and of this TOS will begin on the date of execution of the Order Form(s) and shall continue until the conclusion of the Online Marketing Program Term as specified on the Order Form. The term for the Online Marketing Program Setup is 12 months or the duration of the Term for the Online Marketing Program whichever is greater.

WebVisible may, under certain circumstances and without prior notice, immediately terminate Customer's WebVisible Online Marketing Program and Online Marketing Program Setup, any associated advertising campaigns, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account terminations), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) engagement by you in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection with the Services, (i) use of content prohibited by search engines. Termination of your WebVisible account includes (a) de-activation of all advertising campaigns, (b) de-activation of your password and (c) barring of further use of the Service. Further, all terminations for cause shall be made in WebVisible's sole discretion and that WebVisible shall not be liable to you or any third party for any termination of your account, any associated advertising campaigns, or access to the Service.

6. CANCELLATION & REFUNDS

You may terminate your Online Marketing Program on 30 days prior written notice to WebVisible if your basis for such termination is due to the demonstrated under-performance of Advertising Campaign by WebVisible; and neither you, nor any event or person beyond WebVisible's control, has caused such under-performance. For Online Marketing Program cancellations prior to 4 months of Service, you will be charged a $200 de-activation fee within 7 days of receipt of your written notice to terminate. After 4 months of Services, there is no de-activation charge. None of Customers' Marketing Program Setup or Online Marketing Program fees shall be refundable. Notwithstanding the foregoing, you acknowledge that WebVisible does not represent, warrant, or make any specific or implied promises as to the successful outcome of any advertising campaigns; Furthermore, for all products, all monies associated with Ad purchases with applicable Publishers that are already scheduled and committed as of the date of any cancellation of your account shall be nonrefundable.

7. YOUR REGISTRATION OBLIGATIONS

In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about you as prompted by the Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If it provides any information that is untrue, inaccurate, not current or incomplete, or WebVisible has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, WebVisible has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).

8. WEBVISIBLE PRIVACY POLICY

Registration Data and certain other information about you are subject to our Privacy Policy. For more information, see our full privacy policy here: www.webvisible.com/legal/privacy-policy.php

9. CUSTOMER ACCOUNT, PASSWORD AND SECURITY

You will receive a user ID, password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify WebVisible of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. WebVisible cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.

10. CUSTOMER CONDUCT

WebVisible does not control the Content that is made available by you for use via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will WebVisible be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, e-mailed, transmitted or otherwise made available via the Service.

You acknowledges that WebVisible may or may not pre-screen Content, but that WebVisible and its designees shall have the right (but not the obligation) in its or their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, WebVisible and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by WebVisible or submitted to WebVisible, including without limitation information in WebVisible marketing materials, web site content, creative advertising designed for you or other customers, and in all other parts of the Service.

You acknowledge, consent and agree that WebVisible may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or account disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your Customer's requests for customer service; or (e) protect the rights, property or personal safety of WebVisible, its users and the public.

You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by WebVisible and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.

11. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION IN THE SERVICE

WebVisible does not claim ownership of Content that you submit or makes available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion in an Ad, you grant WebVisible a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purposes of providing and promoting the specific Ad to which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or WebVisible removes such Content from the Service.

12. INDEMNIFICATION

You agree to indemnify and hold WebVisible and its subsidiaries, affiliates, officers, agents, employees, partners (including Publishers) and licensors harmless from any liability, losses, claims, demands, disputes, damages, and costs of any kind, including without limitation, reasonable attorneys' fees and costs of litigation made by any third party due to or arising out of Content you submits, posts, transmits or otherwise makes available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.

13. NO RESALE OF SERVICE

You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.

14. MODIFICATIONS TO SERVICE

WebVisible reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. WebVisible shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

15. WEBVISIBLE PROPRIETARY RIGHTS

You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. WebVisible grants You a personal, non-transferable and non-exclusive right and license to use its Software through a computer; provided that You do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by WebVisible for use in accessing the Service.

16. DISCLAIMER OF WARRANTIES

CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT:

CUSTOMER'S USE OF THE SERVICE IS AT CUSTOMER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WEBVISIBLE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WEBVISIBLE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER'S EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT CUSTOMER'S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM WEBVISIBLE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.

17. NO SPECIAL DAMAGES; LIMITATION OF LIABILITY

CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT WEBVISIBLE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, 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 WEBVISIBLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:

THE USE OR THE INABILITY TO USE THE SERVICE;
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;
UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER'S TRANSMISSIONS OR DATA
STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR
ANY OTHER MATTER RELATING TO THE SERVICE.

18. NO ASSIGNMENT

The Services provided hereunder are personal to you, and may not be assigned to any other person or entity.

19. NOTICE

Notices shall be sent to WebVisible at: _________________, and to you at:___________

20. TRADEMARK INFORMATION

All WebVisible marks, including the WebVisible logo, trademarks and service marks, and other WebVisible product and service names are trademarks of WebVisible, Inc. Without WebVisible's prior permission, you agree not to display or use in any manner the WebVisible marks.

21. GENERAL INFORMATION

Entire Agreement: Nothing contained in this Agreement shall be construed to limit any legal remedies available to WebVisible. The TOS, together with applicable Order Forms, constitutes the entire agreement between you and WebVisible, merges all prior discussions, whether through officers, directors, salespersons, employees or consultants, and governs your use of the Service, superseding any prior agreements between you and WebVisible with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other WebVisible services, affiliate services, third-party content or third-party software.

Choice of Law and Forum: The TOS and the relationship between You and WebVisible shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and WebVisible agree to submit to the personal and exclusive jurisdiction of the courts located within Orange County, California.

Waiver and Severability of Terms: The failure of WebVisible to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.

Statute of Limitations: You agree 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 the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The section titles in the TOS are for convenience only and have no legal or contractual effect.

If any provision of this Agreement is found by a court or other binding authority to be invalid, you agree that every attempt shall be made to give effect to the parties' intentions as reflected in that provision, and the remaining provisions contained in this Agreement shall continue in full force and effect. Each party is an independent contractor and not a partner, joint venture or employee of the other. Neither party shall have the right to bind the other or to incur any obligation on the other's behalf. All notices shall be sent to the addresses submitted by you when signing up for the service by certified mail, fax, email or courier. WebVisible reserves the right to change any of the terms and/or conditions of this Agreement at any time, with or without notice to you.