EXHIBIT 10.12
AMBASSADOR TERMS AND CONDITIONS
1. INTRODUCTION: Overture Services, Inc. ("Overture") provides you and your
advertising clients access to the Overture Marketplace (defined below), as
available through the Overture Distribution Network (as defined below), subject
to your compliance with the terms and conditions below (this Ambassador Terms
and Conditions, together with the Overture Ambassador Agreement to which it
relates, Is collectively the "Agreement"). Please read this Agreement carefully.
By enrolling your Clients as Overture "Advertisers," you agree that you are
bound by these terms and conditions and the terms and conditions of any
Insertion Order that you complete, including all payment terms (collectively,
the "Agreement"). In this Agreement, "you" and "your" refers to both you the
Ambassador (or other entity representing Clients) together with all of your
Clients. You agree that any of your agents, representatives, employees, or any
person or entity acting on your behalf with respect to the use of the Overture
Marketplace, shall be bound by, and shall abide by, this Agreement. You further
agree that you are bound by this Agreement whether you are acting on your own
behalf or on behalf of a third party, including another Advertiser.
2. USE: For purposes of this Agreement, the "Overture Marketplace" is the
process by which users search for a desired subject and Advertisers bid for
placement of their search listing In the search results, subject to Overture's
policies, for search terms corresponding to the desired subject. The Overture
Marketplace takes the ongoing results of the bids for placement and produces
search listings that are made available in connection with the Overture
Distribution Network, where the "Overture Distribution Network" is defined as
Overture's branded Web site at xxxx://xxx.xxxxxxxx.xxx and various authorized
third parties who may be authorized to make the Overture Marketplace available
as a link from, an add-on service to, or otherwise in connection with Web sites
and/or applications (such web sites or applications are a "Third Party Product")
that they control. Search listings may or may not be placed in the Overture
Marketplace as you Indicate in your Insertion Order(s). Overture does not
guarantee that your search listings will be available through any part of the
Overture Distribution Network, and you understand that Overture reserves the
right to not place your search listing, and/or discontinue to place your search
listings on any site or application within the Overture Distribution Network.
You additionally understand that clicks on "your search listings" Include clicks
on the search terms that you have selected as well as certain misspellings,
singular/plural combinations, and other related search terms that we map to your
search listings based on the search terms you selected, your search listings
themselves or the Web sites to which the search listings link. Solely for
illustration purposes, and without in any way limiting the foregoing, if you bid
for placement on the keyword "book," your search listing will also appear in
response to a search on the keyword "books." A search listing, for purposes of
this Agreement, may include, at Overture's discretion, text and/or graphics, and
is subject to Overture's approval and the terms of this Agreement. A search
listing that appears as part of the Overture Distribution Network may (or may
not) include a search title and search description. In all cases, information
must be submitted in the form requested by Overture.
3. PAYMENT: You agree to prepay to Overture all applicable charges to your
account(s) in United States dollars, including, if any, all applicable taxes, or
if approved in writing by Overture, in accordance with billing terms In effect
at the time the fee becomes payable. You understand and agree that, in addition
to any service fees, you will be charged for all clicks on your search listings,
(no matter whether a click occurred on the Overture Web Site or a Third Party
Product within the Overture Distribution Network), and that such charges will be
based on the number of clicks on all your search listings, multiplied by the
amount you have bid for each such search listing ("Click Charges"). (i.e.,
Overture bills net with no gross up). If you have chosen a payment plan that
provides for a fixed maximum payment per month, you understand and agree that if
your Click Charges equal or exceed your monthly maximum payment, then your
search listings will be removed from the Overture Marketplace for the remainder
of that month. You may pay Overture by credit card, charge card, debit card,
check or wire transfer. You agree and represent that all information you provide
for the purpose of enrolling Clients as Advertisers will be accurate, complete
and current. Your right to access your account with Overture is subject to any
limits established by Overture. If payment cannot be charged to your
credit/charge/debit card, for whatever reason, or if there is a charge back for
any reason, or If your financial institution does not honor your check, or If
you exceed your monthly maximum payment, Overture reserves the right to either
suspend or terminate your account with Overture. Suspension or termination
Includes but is not limited to, removal of your search listings from the
Overture Distribution Network. You must submit any claims or disputes you may
have with respect to any charge to your account in writing to Overture within 60
days of such charge otherwise such claim or dispute will be waived and such
charge will be final and not subject to challenge. In the event of any failure
by you to make payment, you will be responsible for all reasonable expenses
(including attorneys' fees) Incurred by Overture in collecting such amounts.
4. ACCESS: For purposes of this Agreement, all Web pages that Overture
owns, operates or hosts are referred to herein as the "Overture Web Site." You
are authorized to access the Overture Web Site solely to manage your advertising
account(s) and conduct searches for your own personal use. You agree that you
will not use the site or any content therein for any other purpose and that you
will not disseminate or distribute any of this Information. Your right to access
your account with Overture Is personal to you and non-assignable and is subject
to any limits established by Overture. You agree that you will not use any
automated means, including, without limitation, agents, robots, scripts, or
spiders, to access your account with Overture or to monitor or copy Overture's
Web Site or the content contained therein except those automated means expressly
made available by Overture, if any, or authorized In advance and in writing by
Overture (for example, Overture approved third party tools and services). The
Overture Web Site contains robot exclusion headers and you agree that you will
not use any device, software or routine to bypass our robot exclusion headers,
or to interfere or attempt to interfere with the proper working of the Overture
Web Site or the Overture Marketplace. Without limitation to the foregoing, you
further agree that you will not take any action that imposes an unreasonable or
disproportionately large load on our Infrastructure (as determined by Overture).
5. MINIMUM BIDS/MINIMUM SPENDS: Your bids on listings In the Marketplace
are subject to Overture's then current minimum bid requirements. Additionally,
all Overture accounts that you create shall be subject to Overture's then
current minimum monthly spend requirements. Find out more about Minimum Bid and
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Minimum Spend.
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6. NON-STOP TRAFFIC PAYMENT PLANS: If you enroll In the Non-Stop Traffic
Plan, then you authorize Overture to automatically charge your credit card for
the amount specified on the enrollment form whenever your account has less than
3-5 days of funds left. You understand that you will receive email notification
after each transaction to notify you that your account has been replenished.
Such charges will appear on your monthly credit card statement. Overture
reserves the right to terminate this payment plan and/or your participation
therein at any time. You also understand that at any time, you may elect to
discontinue your enrollment in this plan by providing written notice to
Overture. Unless you discontinue your enrollment in this plan, you understand
that this authorization is valid until the termination of this agreement with
Overture or until your credit card expires.
7. FIXED BUDGET PAYMENT PLANS: If you enroll in the Fixed Budget Plan, then
you authorize Overture to automatically charge your credit card each month up to
the maximum amount specified on the enrollment form. You agree that the amount
charged to your credit card shall be equivalent to your monthly budget less any
credits remaining from the prior month. You understand that you will receive
email notification from Overture at the beginning of each month to notify you of
the amount your credit card has been charged to replenish your account. Such
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charges will appear on your monthly credit card statement. You understand that
your Overture account may be suspended for the remainder of the month in which
your account exceeds your budget amount. Overture reserves the right to
terminate this payment plan and/or your participation therein at any time. You
also understand that at any time, you may elect to discontinue your enrollment
in this plan by providing written notice to Overture. Unless you discontinue
your enrollment in this plan, you understand that this authorization is valid
until the termination of this agreement with Overture or until your credit card
expires.
8. ADVERTISER'S RIGHTS AND RESPONSIBILITIES: (a) Advertiser Submissions:
You may submit your material for your search listing either by email; file
transfer protocol; telephone; fax; U.S. Mail; or, if you are modifying or adding
a search listing, at our DirecTraffic Center(R) located at
xxxxx://xxxxxx.Xxxxxxxx/x/xxx/xxxxxx/. Overture reserves the right to edit,
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refuse, reject or remove any search listing at its discretion at any time. You
represent and warrant that all information, in the search listing itself or
through the Web site to which the search listing links, (1) does not violate any
law or regulation; (ii) does not infringe in any manner any copyright, patent,
trademark, trade secret or other intellectual property right of any third party;
(iii) does not breach any duty toward or rights of any person or entity
Including, without limitation, rights of publicity or privacy, or has not
otherwise resulted in any consumer fraud, product liability, tort, breach of
contract, injury, damage or harm of any kind to any person or entity; (iv) is
not false or misleading; and/or (v) is neither defamatory, libelous, slanderous
or threatening. (b) Accepting Overture Suggestions: Overture reserves the right
to edit, refuse, reject or remove any search listing at its discretion at any
time. From time to time, (or as part of a particular program) Overture may
provide suggestions to you for search terms, title and/or descriptions or for
any other element of a search listing but the final decision to authorize any
suggestion is yours. Ideas provided by Overture are only suggestions and you are
under absolutely no obligation to use such suggestions. It is your
responsibility to determine whether such suggestions comply with the
requirements of Advertiser Submissions section above. By using a search term,
search title, search description and/or search listing that may have been
suggested by Overture, you acknowledge that such search term, search title,
search description and/or search listing Is in compliance with the Advertiser
Submissions Section above and with this Agreement.
9. YOUR SITE: You hereby acknowledge that Overture is not responsible for
the maintenance of your Web site(s) nor is Overture responsible for order entry,
payment processing, shipping, cancellations, returns or customer service
concerning orders placed on Advertiser's Web site(s). You must update your
search listings if any information is not a current and accurate description of
information available on your Web site. You further acknowledge that your site
does not contain any Overture owned or licensed content, Including but not
limited to, any Overture search listings, except pursuant to a separate signed
affiliate agreement with Overture. You hereby grant Overture the Irrevocable
right to access, index, cache, and display (in connection with your listings)
the Web site(s) to which your search listings link, or any portion thereof,
including by any automated means including web spiders or crawlers. This grant
specifically Includes Overture's right to create and display copies of any and
all text, graphics, images, audio, video, and all other material included or
found on such Web sites or portions thereof, including the right to create and
display thumbnail and full-scale copies of any Images or video included on or
found on such Web sites or portions thereof.
10. CONFIDENTIALITY: "Confidential Information" means any Information
disclosed to you by Overture, either directly or Indirectly, in writing, orally
or by inspection of tangible objects, other than information that you can
establish (i) was publicly known and made generally available in the public
domain prior to the time of disclosure to you by Overture; (ii) becomes publicly
known and made generally available after disclosure to you by Overture other
than through your action or inaction; or (iii) is in your possession, without
confidentiality restrictions, at the time of disclosure by Overture as shown by
your files and records Immediately prior to the time of disclosure. You shall
not at any time (a) disclose, sell, license, transfer or otherwise make
available to any person or entity any Confidential Information, (b) use any
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Confidential Information, or (c) reproduce or otherwise copy any Confidential
Information, except as necessary in connection with the purpose for which such
Confidential Information is disclosed to you or as required by applicable law.
You agree to take all reasonable measures to protect the secrecy of and avoid
disclosure and unauthorized use of the Confidential Information. All
Confidential Information shall at all times remain Overture's personal property
and all documents, electronic media and other tangible Items containing or
relating to any Confidential Information shall be delivered to Overture
immediately upon Overture's request.
11. REPRESENTATIONS AND WARRANTIES: You represent and warrant that you have
sufficient authority to enter into this Agreement on your own behalf and the
Ambassador (or other party representing Clients) represents and warrants that it
has the legal authority to enter Into this Agreement on behalf of Its
Advertisers and that such authority Includes the right to bind such Advertiser
and to make all decisions (including but not limited to bid price, search
listing terms, monthly spend) relating to such accounts. You represent and
warrant that each of your search listings meets the standards and requirements
of the Advertiser Rights and Responsibilities section above.
12. INDEMNIFICATION: You hereby agree to indemnify and hold harmless
Overture, its information providers, licensors, licensees, consultants,
contractors, agents, attorneys and employees from any and all liabilities, costs
and expenses, including, without limitation, reasonable attorneys' fees, that
may arise from your use of the Overture Marketplace or other Overture Web sites
and/or your Web site and/or your breach of the terms of this Agreement,
including, without limitation, the breach of any representation or warranty. You
agree to be solely responsible for defending any claim, subject to Overture's
right to participate with counsel of its own choosing, and for payment of
damages or losses resulting from the foregoing to both a third party and
Overture, provided that you will not agree to any settlement that imposes any
obligation or liability on Overture without Overture's prior written consent.
Overture reserves the right to terminate or suspend the account of any
Advertiser or the accounts of any Ambassador (or other entity that represents
Clients) that may violate any of the terms in this Agreement.
13. WARRANTY DISCLAIMER: YOU EXPRESSLY AGREE THAT YOUR USE OF THE OVERTURE
MARKETPLACE IS AT YOUR OWN RISK. THE OVERTURE MARKETPLACE IS AVAILABLE ON AN "AS
IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER OVERTURE
NOR ANY OF ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS,
ATTORNEYS, CONSULTANTS OR CONTRACTORS, OR ENTITIES WITHIN THE OVERTURE
DISTRIBUTION NETWORK MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING
THE OVERTURE MARKETPLACE, THE SUCCESS OF YOUR SEARCH LISTING AS MEASURED IN ANY
WAY, ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN
CONNECTION WITH OVERTURE AND/OR THE OVERTURE MARKETPLACE OR ANY RESULTS OBTAINED
THROUGH THE USE THEREOF. OVERTURE HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ALL
INFORMATION PROVIDERS, LICENSORS, LICENSEES, CONTRACTORS, CONSULTANTS, AGENTS,
ENTITIES WITHIN THE OVERTURE DISTRIBUTION NETWORK, ATTORNEYS AND/OR EMPLOYEES OF
IT ANY AND ALL WARRANTIES INCLUDING, WITHOUT LIMITATION (1) ANY WARRANTIES AS TO
THE AVAILABILITY, ACCURACY OR CONTENT OF THE OVERTURE MARKETPLACE AND/ OR
INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH THE OVERTURE MARKETPLACE;
AND (2) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILI Y OR FITNESS FOR
A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY
GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY
FROM STATE TO STATE.
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14. LIMITATION OF LIABILITY: ANY LIABILITY OF OVERTURE, ITS INFORMATION
PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS, ENTITIES WITHIN
THE OVERTURE DISTRIBUTION NETWORK, ATTORNEYS OR CONTRACTORS, INCLUDING, WITHOUT
LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE
OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF
DELIVERY OF MERCHANDISE, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS,
COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO,
ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT,
TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE
STRICTLY LIMITED TO THE AMOUNT ALREADY PAID BY THAT PARTICULAR ADVERTISER TO
OVERTURE (WHETHER DIRECTLY TO OVERTURE OR THROUGH AN AMBASSADOR OR OTHER PARTY
REPRESENTING CLIENTS) FOR PLACEMENT OF SEARCH LISTINGS IN THE PRIOR SIX MONTH
PERIOD. IN NO EVENT SHALL OVERTURE, ITS INFORMATION PROVIDERS, LICENSORS,
LICENSEES, EMPLOYEES, ENTITIES WITHIN THE OVERTURE DISTRIBUTION NETWORK, AGENTS,
CONSULTANTS, ATTORNEYS OR CONTRACTORS, BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THIS AGREEMENT, THE USE OR
INABILITY TO USE THE OVERTURE MARKETPLACE AND/OR THE SITES LINKED TO FROM THE
OVERTURE MARKETPLACE OR FOR ANY BREACH OF WARRANTY. SOME STATES DO NOT ALLOW THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO
THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE THAT YOU WILL
NOT HOLD OVERTURE RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS,
ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE OVERTURE
MARKETPLACE AND/OR SITES LINKED TO FROM THE OVERTURE MARKETPLACE, INCLUDING,
WITHOUT LIMITATION, THOSE WITH WHOM OVERTURE CONTRACTS TO OPERATE VARIOUS
PORTIONS OF THE OVERTURE MARKETPLACE AND THOSE TO WHOM OVERTURE PROVIDES LINKS
TO FOR CONTENT, ADVERTISING OR ANY OTHER TYPE OF DATA OR INFORMATION. WITHOUT
LIMITING THE FOREGOING, OVERTURE SHALL HAVE NO LIABILITY HEREUNDER BY REASON OF
ANY FAILURE OR DELAY IN THE PERFORMANCE OF ITS OBLIGATIONS ON ACCOUNT OF
STRIKES, SHORTAGES, RIOTS, ACTS OF TERRORISM, INSURRECTION, FIRES, FLOOD, STORM,
EXPLOSIONS, EARTHQUAKES, INTERNET OUTAGES, COMPUTER VIRUS, ACTS OF GOD, WAR,
GOVERNMENTAL ACTION, OR ANY OTHER CAUSE THAT IS BEYOND OVERTURE'S REASONABLE
CONTROL.
15. CANCELLATION OR TERMINATION: If you are dissatisfied with the Overture
Marketplace or with any of the terms and conditions contained herein, your sole
and exclusive remedy is to terminate your account. You may cancel your
participation in the Overture Marketplace at any time by sending a message to
clientservices@Overture. Notwithstanding anything contained In this Agreement to
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the contrary, Overture may, In its sole discretion, terminate your account
(which includes either a particular Advertiser account or all accounts from an
Ambassador or other party representing Clients), and discontinue your
participation in the Overture Marketplace (or on any Web site or Third Party
Product that is part of the Overture Distribution Network), or your use of any
search term or any search listing. Reasons for Overture's determination to so
terminate or discontinue your account or participation as provided for above
include, but are not limited to, if Overture believes that you violated this
Agreement or other policies or guidelines of Overture or of a Third Party
Product (or other member of the Overture Distribution Network) that uses,
licenses or distributes the Overture Marketplace, or if Overture believes your
conduct may be harmful to other consumers, advertisers or licensees who
participate in (or offer to its users) the Overture Marketplace. All decisions
made by Overture in this matter will be final and neither Overture nor its
licensees (or distributors) shall have any liability with respect to such
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decisions. If Overture terminates your account or if you decide to terminate
your account, and you provide notice to Overture, your account will be deemed
terminated when Overture receives such notice. Sections 3, 4, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19 and 20 shall survive any cancellation or termination of
this Agreement.
16. LIABILITY: You the Ambassador (or other entity representing Clients)
shall be liable for all obligations, covenants, representations, warranties,
Indemnities and agreements contained in this Agreement.
17. USE OF OVERTURE MARKETPLACE SUBMISSIONS: By submitting material to the
Overture Marketplace (including information for a search listing) you are
irrevocably granting Overture, Its licensees, and any entities in the Overture
Distribution Network, the right to use all parts of the material, without
limitation, Including modifying it or using it commercially and authorizing
others to do so.
18. NOTICES: Overture may give general notices to you by posting on the
Overture Marketplace or xxx.xxxxxxxx.xxx or any one of Overture's Web sites, if
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possible, by electronic mail to your email address provided by you to Overture.
It is your responsibility to ensure that your e-mail address and any other
contact Information you provide to Overture Is updated and correct. You may give
notice to Overture by email to clientservices@Overture.
19. CHOICE OF LAW: This Agreement shall be construed and controlled by the
laws of the State of California. Any dispute arising from this Agreement,
including, without limitation, a breach of this Agreement, shall be governed by
the laws of the State of California, without regard to its conflict of laws
principles. You agree to submit to the exclusive jurisdiction of the state and
federal courts located In Los Angeles. Any claim against Overture arising from
this Agreement shall be adjudicated on an individual basis, and shall not be
consolidated in any proceeding with any claim or controversy of any other party.
20. OTHER: This Agreement constitutes the entire Agreement between the
parties with respect to the subject matter contained herein and supersedes all
previous and contemporaneous agreements, proposals and communications, written
or oral, between you and Overture. Only a written instrument executed by the
party waiving compliance may waive the terms or covenants of this Agreement. If
any provision of this Agreement is held or made invalid or unenforceable for any
reason, such Invalidity shall not affect the remainder of this Agreement, and
the invalid or unenforceable provisions shall be replaced by a mutually
acceptable provision, which being valid, legal and enforceable comes closest to
the original intentions of the parties hereto and has like economic effect. This
Agreement is not intended to benefit, nor shall it be deemed to give rise to,
any rights in any third party. Overture may change this Agreement at any time
upon notice published on the Overture Marketplace or any one of Overture's Web
sites or by email notification to you. Any use of the Overture Marketplace or
any of Overture's Sites after such notice shall be deemed to be continued
acceptance of this Agreement including its amendments and modifications.
Overture reserves the right to discontinue offering the Overture Marketplace at
any time.
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Signed: Date:
Official Company Name: Roanoke Techno y, Corp.
Street Address: 000 Xxxxxx Xx.
City State/Zip: Roanoke Rapids, NC 27870
Web site Address:
xxxx://xxx.xxxxxxxxxxxxxxxxx.xxx
Contact: Xxxx Xxxx
Telephone/Fax: 000-000-0000 xxx 000 fax 000-000-0000
Email: Xxxxx@xxx-00.xxx
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