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Effective March 20, 2014 (revised and updated)
The Evolve 24/7, LLC Terms and Conditions for Internet Advertising are intended to offer Advertisers and their Agencies a standard for conducting business in a manner acceptable to all parties. This document is available via hyperlink on all Evolve 24/7, LLC. Advertising agreement insertion orders (or printed version when requested) and represents a common understanding for doing business.
Evolve 24/7, LLC. (“Evolve 24/7” or “Company”) will deliver internet based development, hosting or advertising services (“Service(s)”) pursuant to a signed Company Agreement or Addendum (collectively, an “Agreement”) under which Services shall be provided for the benefit of the “Advertiser or Agent” (“Advertiser”) Advertiser. Each Agreement will specify: (a) the type(s) of Services to be delivered (e.g., Search Engine Optimization, Pay-Per-Click Campaign Creation and Management, Web Design) (b) the price(s) for such Services; (c) the maximum amount of money to be spent pursuant to the Agreement (if applicable), and (d) the term of the Agreement.
Acceptance of the Agreement and these Terms and Conditions shall be made upon the earlier of (a) written (which, unless otherwise specified, for purposes of these Terms and Conditions will include paper, fax, or e-mail communication) approval of the Agreement by Evolve 24/7 and Advertiser; or (b) the display of the first Ad impression by Evolve 24/7, unless otherwise agreed upon in the Agreement. Notwithstanding the foregoing, modifications to the originally submitted Agreement will not be binding unless signed by both parties.
Revisions to accepted Agreements must be made through a writing signed by the other party.
By executing a Company Agreement, Advertiser agrees to be bound by these terms and conditions as principal, even if it is acting as Agent or Buyer for the actual Advertiser.
Credit Cards: Advertiser agrees to pay amounts specified in the Agreement or corresponding invoice, along with any applicable taxes, by providing a valid credit card authorized in writing by Evolve 24/7. All payments shall be made in US Dollars. To the extent Advertiser has provided a credit card, Advertiser authorizes Evolve 24/7 to charge Advertiser’s credit card for any and all amounts due. Evolve 24/7 may charge such amounts at the time the order is placed or at any time thereafter. Advertiser further authorizes Evolve 24/7 to obtain pre-approval from Advertiser’s credit card issuer. Evolve 24/7 will not be liable for any loss or damage arising from Advertiser’s failure to maintain the security or confidentiality of Advertiser’s account. Refunds (if any) are at the discretion of Evolve 24/7 and may be in the form of a credit for advertising services. To the fullest extent permitted by law, Advertiser waives all claims against Evolve 24/7 related to charges (including any claims related to suspected invalid clicks or other actions) unless claimed within 60 days after the charge.
Invoices: Unless otherwise agreed to by Evolve 24/7 in writing, Evolve 24/7 will send Advertiser an invoice pursuant to the terms stated in an Agreement for specific services for all amounts owed to date. Evolve 24/7 will send such invoice to Advertiser at the email or mailing address provided in that Agreement. Advertiser will pay Evolve 24/7 all amounts owed on said invoice, in full, consistent with the payment terms stated in a particular Agreement. Invoices will include information reasonably specified by Advertiser. Evolve 24/7 may notify Advertiser of non-payment if payment is not received by the due date and whether it intends to seek payment directly from Advertiser pursuant to Section IV.c. if payment is not made in the following 5 business days.
Payment Liability: Unless otherwise set forth by Advertiser in the Agreement, Evolve 24/7 will hold Advertiser and/or Agencies liable for payments due for Services rendered in accordance with the Agreement. Upon request by Evolve 24/7, Advertiser or Agencies will provide written confirmation of the relationship between said Agency and Advertiser. Such confirmation will include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf to enter into and comply with the Agreement and these Terms and Conditions. In addition, upon Evolve 24/7’s request, Agency will confirm whether Advertiser has paid Agency funds, in advance, sufficient to make payments owed under the Agreement. Evolve 24/7 may require payment in advance if it reasonably believes that Advertiser or Agency’s credit is or may become impaired.
Evolve 24/7 may charge interest on all past due amounts owed. In such instance, Evolve 24/7 will charge Advertiser or Agency interest equal to the greater of 12% per annum or a floating rate of WSJ Prime plus two percentage (2%) points on all past due amounts, starting from the date such amounts are due. Notwithstanding anything to the contrary herein, the rate and amount of interest that Evolve 24/7 will charge Advertiser will in no event exceed the maximum rate allowed by statute in the State of Washington. Such interest is a penalty and does not cure Advertiser or Agency’s breach of contract for failing to make payment when due.
In the event of late payment by the Advertiser, Evolve 24/7 reserves the right to suspend the Advertiser’s information placed, posted, inserted or displayed in the Internet Site. In the event Advertiser breaches this Agreement by failing to pay amounts owed, he Advertiser shall be responsible for all expenses, including but not limited to legal fees, incurred by Evolve 24/7 in collecting such amounts, regardless of whether Evolve 24/7 institutes any arbitration, action, suit, or proceeding.
Collections. In the event of non-payment and Company does not institute any arbitration, action, suit, or proceeding, Advertiser will pay Company all reasonable costs and expenses, including but not limited to attorney’s fees and collection fees, incurred by Company in attempting to collect payment.
Within 5 business days of the start date, as provided on the Agreement, Evolve 24/7 will provide confirmation to Advertiser, either electronically or in writing, stating whether it has begun delivery of the services contracted for in a particular Agreement.
Evolve 24/7 will provide Advertiser update reports consistent with the terms of the specific Agreement. Once Evolve 24/7 has provided Advertiser the online or electronic report, Advertiser shall be entitled to reasonably rely on its accuracy.
Any Agreement may be canceled without charge if written notice of such cancellation is provided at least thirty (30) days before the scheduled start date of the advertising campaign unless Evolve 24/7 has begun providing services pursuant to the Agreement. in which case Advertiser will pay Evolve 24/7 for the services provided to date. Advertiser will pay Evolve 24/7 fifty percent (50%) of the advertising contract amount as a cancellation damage if any Agreement is canceled by the Advertiser less than thirty (30) days before the scheduled start date of the advertising campaign. After the advertising campaign has started, all advertisements must run their contracted duration pursuant to the Agreement.
Either party may terminate the Agreement if the other party materially breaches this Agreements terms and conditions or any other agreement entered into between the parties and fails to cure such breach within twenty (20) days of receiving written notice of such breach. If Evolve 24/7 terminates the Agreement due to the Advertiser’s material breach of this Agreements terms and conditions or any other agreement entered into between the parties, all of the Advertiser’s payment obligations hereunder will survive such termination. If the Advertiser terminates the Agreement due to Evolve 24/7′s material breach of these terms and conditions, the Advertiser shall be responsible only for the pro-rata portion of any amounts owed up to the termination date.
Evolve 24/7 may terminate the Agreement at any time for any reason upon the shorter of the termination provisions stated in a specific Agreement under which services are being provided or twenty (20) days written notice to the Advertiser (or upon such shorter notice as may be designated by Evolve 24/7 in the event that Evolve 24/7 reasonably believes in good faith that further display of the advertisements will expose Evolve 24/7 to liability or other adverse consequences). In such event, the Advertiser shall be responsible only for only the pro-rata portion of any amounts owed up to the termination date.
Excluding payment obligations, neither party shall be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. In the event that Evolve 24/7, or one of the sites that it is placing Advertisers ads on suffers such a delay or default, Evolve 24/7 will make reasonable efforts within five business days to recommend a substitute transmission for the ad or time period for the transmission. In addition, Advertiser will have the benefit of the same discounts that would have been earned had there been no default or delay. If Advertiser’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Advertiser’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Advertiser will make every reasonable effort to make payments on a timely basis to Evolve 24/7, but any delays caused by such condition shall be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition. Under no circumstances will Evolve 24/7 bear any liability for such act, the delay such act creates, or any damages caused by such act.
To the extent that a force majeure has continued for 5 business days, either party may cancel the remainder of the Agreement without penalty.
It is Advertiser’s obligation to submit Advertising Materials in accordance with Evolve 24/7′s then existing advertising criteria or specifications in accordance with Section II (c). Evolve 24/7′s sole remedy for a breach of this provision is set forth in paragraph (c) below, and Section VIII (b). If Advertising Materials are late, Advertiser shall still be responsible for the media purchased pursuant to Agreement.
Evolve 24/7, if requested to do so and if noted on the Agreement, will create the content and ad text for the Advertising services. In addition, Evolve 24/7 will make updates and ad text and keyword changes in order to improve the performance of the advertising services.
If Advertising Materials provided by Advertiser are damaged, not to Evolve 24/7′s specifications, or otherwise unacceptable, Evolve 24/7 will use commercially reasonable efforts to notify Advertiser of such deficiency within five (5) business days of its receipt of such Advertising Materials.
DISCLAIMER OF WARRANTIES. TO THE FULLEST EXTENT PERMITTED BY LAW, EVOLVE 24/7 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES FOR NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY AND FITNESS FOR ANY PURPOSE. EVOLVE 24/7 DOES NOT GUARANTEE OR WARRANTY ANY PARTICULAR RESULTS FROM THE ADVERTISEMENTS THE ADVERTISER PLACES OR THE SERVICES PROVIDED BY EVOLVE 24/7. EVOLVE 24/7 DOES NOT WARRANT THAT THE INTERNET SITES WE PLACE ADVERTISERS ADS ON SHALL BE UNINTERRUPTED, ERROR-FREE, ACCESSIBLE AT ANY PARTICULAR TIME OR FREE OF INFECTION FROM VIRUSES OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. ALTHOUGH EVOLVE 24/7 WILL USE REASONABLE COMMERCIAL EFFORTS TO RUN ADVERTISEMENTS IN THE REQUESTED POSITION OR SPACE OF THE INTERNET SITES WHICH HAVE BEEN AGREED TO IN WRITING, IT IS UNABLE TO GUARANTEE THIS RESULT. FURTHERMORE, THOUGH EVOLVE 24/7 WILL USE REASONABLE COMMERCIAL EFFORTS TO PLACE, POST, INSERT OR DISPLAY ADVERTISER’S TRADEMARKS AND LOGOS IN ADVERTISEMENTS IN ACCORDANCE WITH ADVERTISER’S WRITTEN INSTRUCTIONS, IT DOES NOT GUARANTEE THIS RESULT. ADVERTISER UNDERSTANDS THAT THIRD PARTIES MAY GENERATE IMPRESSIONS, CLICKS, OR OTHER ACTIONS AFFECTING THE COST OF THE ADVERTISING FOR FRAUDULENT OR IMPROPER PURPOSES, AND IT ACCEPTS THE RISK OF ANY SUCH IMPRESSIONS, CLICKS, OR OTHER ACTIONS. EVOLVE 24/7 WILL HAVE NO RESPONSIBILITY OR LIABILITY TO THE ADVERTISER IN CONNECTION WITH ANY THIRD-PARTY CLICK FRAUD OR OTHER IMPROPER ACTIONS THAT MAY OCCUR.
SEARCH ENGINE OPTIMIZATION. BY SIGNING AN ADDENDUM FOR SEARCH ENGINE OPTIMIZATION SERVICES, ADVERTISER ACKNOWLEDGES AND AGREES THAT EVOLVE 24/7 NEITHER OWNS NOR GOVERNS THE ACTIONS OF ANY SEARCH ENGINE. ADVERTISER ALSO ACKNOWLEDGES THAT DUE TO FLUCTUATION IN THE RELATIVE COMPETITIVENESS OF SOME SEARCH TERMS, RECURRING CHANGES IN THE SEARCH ENGINE ALGORITHMS, AND OTHER COMPETITIVE FACTORS, IT IS IMPOSSIBLE TO GUARANTEE NUMBER ONE RANKINGS OR CONSISTENT TOP TEN RANKINGS, OR ANY OTHER SPECIFIC RANKINGS FOR ANY PARTICULAR SEARCH TERM. THE COMPANY SHALL NOT BE HELD RESPONSIBLE FOR CHANGES MADE TO ADVERTISER’S WEBSITE BY OTHER PARTIES THAT MAY ADVERSELY AFFECT THE ADVERTISER’S SEARCH ENGINE RANKINGS.
INDEMNIFICATION. EVOLVE 24/7 AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS ADVERTISER AND THEIR AFFILIATES (AS DEFINED BELOW) AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY AND ALL DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) (COLLECTIVELY “LOSSES”) ARISING OUT OF EVOLVE 24/7′S BREACH OF SECTION 10, EVOLVE 24/7′S DISPLAY OR DELIVERY OF ANY AD IN BREACH OF THESE TERMS AND CONDITIONS OR THE TERMS OF AN AGREEMENT, AND EVOLVE 24/7′S DISPLAY OR DELIVERY OF ANY AD THAT IS DEFAMATORY OR OBSCENE, OR VIOLATES ANY LAW, REGULATIONS OR OTHER JUDICIAL OR ADMINISTRATIVE ACTION, EXCEPT TO THE EXTENT (1) THAT SUCH CLAIM, JUDGMENT OR PROCEEDING RESULTED FROM SUCH MATERIALS FULFILLING ADVERTISER’S UNIQUE SPECIFICATIONS, PROVIDED THAT EVOLVE 24/7 DID NOT KNOW OR SHOULD NOT HAVE REASONABLY KNOWN THAT SUCH SPECIFICATIONS WOULD GIVE RISE TO THE LOSS; OR (2) THAT SUCH MATERIALS ARE PROVIDED TO ADVERTISER FOR REVIEW AND THE ADVERTISER KNEW OR SHOULD HAVE REASONABLY KNOWN FROM THE VISUAL OR SONIC EXPRESSION OF THE AD, WHILE EVOLVE 24/7 DID NOT KNOW OR SHOULD NOT HAVE REASONABLY KNOWN, THAT SUCH MATERIAL VIOLATED ANY LAW, REGULATIONS OR OTHER JUDICIAL OR ADMINISTRATIVE ACTION, OR ARE DEFAMATORY OR OBSCENE. AN AFFILIATE MEANS, WITH RESPECT TO EITHER PARTY, ANY CORPORATION, FIRM, PARTNERSHIP, PERSON OR OTHER ENTITY, WHETHER DE JURE OR DE FACTO, WHICH DIRECTLY OR INDIRECTLY OWNS, IS OWNED BY OR IS UNDER COMMON OWNERSHIP WITH SUCH PARTY TO THE EXTENT OF AT LEAST 50% OF THE EQUITY HAVING THE POWER TO VOTE ON OR DIRECT THE AFFAIRS OF THE ENTITY, AND ANY PERSON, FIRM, PARTNERSHIP, CORPORATION OR OTHER ENTITY ACTUALLY CONTROLLED BY, CONTROLLING OR UNDER COMMON CONTROL WITH SUCH PARTY.
ADVERTISER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS EVOLVE 24/7 ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS AND AGENTS FROM ANY AND ALL LOSSES INCURRED AS A RESULT OF A CLAIM, JUDGMENT OR PROCEEDING RELATING TO OR ARISING OUT OF ADVERTISER’S BREACH OF SECTION 10, VIOLATION OF POLICIES (TO THE EXTENT THE APPLICABLE TERMS OF SUCH POLICIES HAVE BEEN PROVIDED TO ADVERTISER AT LEAST TEN DAYS PRIOR TO THE VIOLATION GIVING RISE TO THE CLAIM), OR THE CONTENT OR SUBJECT MATTER OF ANY AD OR ADVERTISING MATERIALS TO THE EXTENT USED BY EVOLVE 24/7 IN ACCORDANCE WITH THESE TERMS AND CONDITIONS OR AN AGREEMENT, INCLUDING BUT NOT LIMITED ALLEGATIONS THAT SUCH CONTENT OR SUBJECT MATTER ARE DEFAMATORY OR OBSCENE, OR VIOLATE ANY LAW, REGULATIONS OR OTHER JUDICIAL OR ADMINISTRATIVE ACTION.
ADVERTISER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS EVOLVE 24/7 ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS AND AGENTS FROM ANY AND ALL LOSSES INCURRED AS A RESULT OF ADVERTISER’S ALLEGED BREACH OF THE FOREGOING SENTENCE.
IF ANY ACTION SHALL BE BROUGHT AGAINST EITHER PARTY (THE “INDEMNIFIED PARTY”) IN RESPECT TO ANY ALLEGATION FOR WHICH INDEMNITY MAY BE SOUGHT FROM THE OTHER PARTY (“INDEMNIFYING PARTY”), THE INDEMNIFIED PARTY WILL PROMPTLY NOTIFY THE INDEMNIFYING PARTY OF ANY SUCH CLAIM OF WHICH IT BECOMES AWARE AND WILL: (I) PROVIDE REASONABLE COOPERATION TO THE INDEMNIFYING PARTY AT THE INDEMNIFYING PARTY’S EXPENSE IN CONNECTION WITH THE DEFENSE OR SETTLEMENT OF ANY SUCH CLAIM; AND (II) BE ENTITLED TO PARTICIPATE AT ITS OWN EXPENSE IN THE DEFENSE OF ANY SUCH CLAIM. THE INDEMNIFIED PARTY AGREES THAT THE INDEMNIFYING PARTY WILL HAVE SOLE AND EXCLUSIVE CONTROL OVER THE DEFENSE AND SETTLEMENT OF ANY SUCH PARTY CLAIM. HOWEVER, THE INDEMNIFYING PARTY WILL NOT ACQUIESCE TO ANY JUDGMENT OR ENTER INTO ANY SETTLEMENT THAT ADVERSELY AFFECTS THE INDEMNIFIED PARTY’S RIGHTS OR INTERESTS WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNIFIED PARTY.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT ANY INDEMNIFYING PARTY IS REQUIRED TO DEFEND, INDEMNIFY OR HOLD HARMLESS AN INDEMNIFIED PARTY FROM A CLAIM, JUDGMENT OR PROCEEDING OF A RELATED PARTY (AS DEFINED BELOW) OF SUCH INDEMNIFIED PARTY PURSUANT TO THIS SECTION 10, LOSSES INCURRED IN CONNECTION WITH SUCH CLAIM, JUDGMENT OR PROCEEDING SHALL BE LIMITED TO THOSE THAT ARE REASONABLY FORESEEABLE. A “RELATED PARTY” IS A PARTY IN A CONTRACTUAL RELATIONSHIP WITH THE INDEMNIFIED PARTY WHERE SUCH SPECIFIC CONTRACTUAL RELATIONSHIP RELATES TO THE LOSS BEING ASSERTED BY THAT RELATED PARTY. ADVERTISER WILL INDEMNIFY EVOLVE 24/7 EVEN IF LOSSES WERE NOT REASONABLY FORESEEABLE.
LIMITATION OF LIABILITY
Excluding the parties obligations under Section 8 or damages that result from a breach of Section 11 or intentional misconduct by the parties, in no event will either party be liable for any economic, consequential, indirect, incidental, punitive, or special damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of any particular Company Agreement, even if such party has been advised of the possibility of such damages.
Notwithstanding anything to the contrary contained in and Agreement signed by Advertiser and Evolve 24/7, neither Evolve 24/7 nor any of its owners, member, employees, subcontractors, contractors or agents, warrants that the functions contained in any deliverable or that any service provided shall prevent a website from being hacked or that such deliverables or services shall be uninterrupted or error-free. Advertiser assumes all risk and liability regarding the quality and performance of such deliverable. In no event will Company be liable to Advertiser or any third party for any damages, including, but not limited to, service interruptions caused by Acts of God, the Hosting Service or any other circumstances beyond Company’s reasonable control, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to operate any website, failure of any service provider, of any telecommunications carrier, of the Internet backbone, of any Internet servers, Advertiser’s or Advertiser’s site visitor’s computer or Internet software, regardless of whether Company has been advised of the possibility of such damages.
Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the Agreement, shall be deemed “Confidential Information” of the disclosing party. Confidential Information will also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed unique, secret, proprietary and confidential, and which constitutes the exclusive property or trade secrets of Advertiser Confidential Information will not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to a party; (ii) was or becomes generally available to the public through no fault of the receiving party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement. If a party is requested or required by any court, agency or other governmental authority to disclose any Confidential Information, it will promptly notify the other so as to permit the other to seek a protective order or take other appropriate action. If, in the absence of a protective order, a party is compelled as a matter of law to disclose any Confidential Information, that party will disclose to the party compelling disclosure only such part of the Confidential Information as is required by law to be disclosed. The parties will exercise its best efforts to obtain assurances that confidential treatment shall be accorded Confidential Information disclosed under such circumstances.
Advertiser and Evolve 24/7 will at all times comply with all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
Electronic Commerce Laws. Advertiser understands and agrees that it is solely responsible for complying with any laws, taxes, and tariffs applicable in any way to E-Commerce related Agreements including but not limited to the Payment Card Industry (PCI) Data Security Standard or any other services contemplated herein. Advertiser will indemnify and hold harmless Company and its members, officers, owners, employees, contractors and subcontractors from any claim, liability, suit, penalty, tax, fine, or tariff arising from Advertiser’s use of Internet electronic commerce and/or any failure to comply with any such laws, taxes, and tariffs.
Only U.S. law regulates sites hosted on Evolve 24/7’s servers. Given this fact, and pursuant to Section 230(c) of the Communications Decency Act, Company will not remove allegedly defamatory material from domains hosted on its servers. The only exception to this rule is for material found to be defamatory by a court, as evidenced by a court order. Company is not in a position to investigate and determine the validity of and legal characterization of individual defamation claims. The appropriate legal authorities shall determine all such issues. Where a court order indicates material is defamatory, libelous, or slanderous in nature, Company will disable access to the material. Similarly, in any case in which a US Court has placed an injunction against specified content or material, Company will comply with such order and remove or disable access to the material in question. The language of Section 230(c) of the Communications Decency Act fundamentally states that Internet services providers such as Evolve 24/7 are not the publishers of content. Evolve 24/7’s service merely provides a hosting platform and space on which to host content, and any creation or publication of content on our services is the sole responsibility of the third-party user which creates or publishes the content. Therefore, Evolve 24/7should not are held liable for any allegedly defamatory, offensive or harassing content published on sites hosted under its webhosting service(s). If in doubt regarding the acceptability of your site or service, Advertiser is directed to contact us at email@example.com and we shall be happy to assist you. Potential harm to minors is strictly forbidden, including but not limited to child pornography or content perceived to be child pornography (Lolita): Any site found to host child pornography or linking to child pornography shall be terminated immediately without notice. Violations will be reported to the appropriate law enforcement agency.
SUBCONTRACTOR ASSIGNMENT. Company reserves the right, at its sole discretion to assign and delegate certain portions of any work performed under any Agreement to subcontractors to insure completion in a comprehensive, timely and professional manner.
INDEPENDENT CONTRACTORS. Evolve 24/7 and Advertiser are independent contractors and neither shall act as the other’s agent, or be deemed an agent or employee of the other, nor shall this Agreement be interpreted as creating a partnership or joint venture or otherwise.
INAPPROPRIATE MATERIAL. The following are examples of unacceptable material or content which are prohibited on Evolve 24/7 Shared Hosting and Dedicated Server Accounts related to its Hosting Services. This list is intended to be representative and not exhaustive.
Image Hosting Scripts (similar to Photobucket or Tinypic)
Pornographic related Sites
Mail Bombers/Spam Scripts
Banner-Ad services (commercial banner ad rotation)
File Dump/Mirror Scripts (similar to rapidshare)
Commercial Audio Streaming (more than one or two streams)
High-Yield Interest Programs (HYIP) or Related Sites
Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme)
Sale of any controlled substance without prior proof of appropriate permit(s)
Prime Banks Programs
Hacker focused sites/archives/programs
Sites promoting illegal activities
Forums and/or websites that distribute or link to warez/pirated/illegal content
Bank Debentures/Bank Debenture Trading Programs
Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com)
Broadcast or Streaming of Live Sporting Events (UFC, NASCAR, FIFA, NFL, MLB, NBA, WWE, WWF, etc)
SET-UP FEES / UP FRONT COSTS. Any applicable set up fee is due at the time the Agreement is executed and is non-refundable.
Performance Based Advertising Products. We or our vendor will fulfill your performance based Advertising Product including, but not limited to, pay-per-call, pay per cpm (cost per thousand impressions), or pay-per-click. Generally, any and all such services or deliverables shall be delivered pursuant to a signed Addendum which shall expressly govern the performance of such services and specific terms and conditions that shall apply to such services or deliverables. For pay-per-click, internet search engines and other internet sites determined by us will provide Advertiser with information regarding the number of clicks necessary to fulfill your budget. If we do not utilize Advertiser’s entire monthly budget, Evolve 24/7 will carryover any leftover balance to the next month or at the sole discretion of Evolve 24/7 will refund such balance to the Advertiser. Evolve 24/7 reserves the right at its sole discretion to change search engines, websites, or vendors from time to time. Advertiser agrees that all placements on search engines, mobile search engines, and other web sites shall conclusively be deemed to have been approved by it. We or our vendor will continue to fulfill your Advertising Product for the contracted number of clicks, calls or other actions (collectively, “Actions”) or until your budget is exhausted. If the applicable number of Actions has not been delivered or Actions disputed by Advertiser have been credited by us in our sole discretion or your budget has not been exhausted during the Initial Term, Evolve 24/7 will continue to fulfill your Advertising Product at no additional charge until the applicable number of Actions has been delivered or your budget has been exhausted. Evolve 24/7 will send or make available to Advertiser, periodic reports from Evolve 24/7 or Distribution Sites regarding the number of Actions delivered by Evolve 24/7. Advertiser agrees that such reports and the counts contained therein shall be the conclusive, definitive measurements of our performance, and that they will determine Advertiser’s related obligations for all purposes of this Agreement. Evolve 24/7 will not accept any other measurements or usage statistics from any other source and such other measurements or usage statistics will not affect or alter our obligations or your rights under this Agreement. If Advertiser cancels its performance-based Advertising Product or disables its Web site or otherwise impair Evolve 24/7’s ability to complete the Actions, Evolve 24/7 will invoice Advertiser for the remaining months of the Initial Term or retain the amount of any remaining budget as an early termination charge.
If Advertiser opts to have Evolve 24/7 create and manage Pay-Per-Call campaigns it understands that it is authorizing Evolve 24/7 to create and submit ads as Evolve 24/7 sees fit on Advertiser’s behalf to third party sites and as a result, Advertiser may also be subject to those third party’s website terms and conditions.
Copyrights and Trademarks. Advertiser guarantees that it owns or has received a license or assignment to use any and all elements of text, graphics, photos, designs, trademarks, or other artwork (collectively “Elements”) provided to Company for inclusion in any project pursuant to an Agreement. Advertiser will hold harmless, protect, and defend Company and its owners, members, employees, contractors and subcontractors from any liability or suit arising from the use of such Elements.
Termination. At the end of the Term of any Agreement, the Agreement will automatically renew on a monthly basis (each a “Renewal Term”) until either party provides the other with at least thirty days (30) written notice of its intent to terminate the Agreement. Advertiser shall be obligated to pay Company for all amounts owed for services performed by Company prior to termination.
Evolve 24/7 represents and warrants that Evolve 24/7 has all necessary permits, licenses, and clearances to provide the services represented in the Agreement subject to the terms and conditions of this agreement, including any applicable Policies. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in their Ads and Advertising Materials.
Legal Notice. Notwithstanding anything to the contrary contained in this contract, neither Company nor any of its owners, member, employees, subcontractors, contractors or agents, warrants that Hosting Services shall be uninterrupted or error-free. Advertiser assumes all risk and liability regarding the quality and performance of Hosting Services. In no event will Company be liable to Advertiser or any third party for any damages, including, but not limited to, service interruptions caused by Acts of God, or any other circumstances beyond Company’s reasonable control, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the provision of Hosting Services, failure of any service provider, of any telecommunications carrier, of the Internet backbone, of any Internet servers, Advertiser’s or Advertiser’s site visitor’s computer or Internet software, regardless of whether Company has been advised of the possibility of such damages.
Compliance with the Law. Advertiser acknowledges and agrees that Company may elect at its sole discretion to monitor the activities of Advertiser on it Website. In the event that Company becomes aware or reasonably believes, in its sole discretion, that the Website is being used for illegal purposes, Company shall be entitled to immediately terminate the Agreement and the Hosting Services without notice in addition to any remedies to which it may be entitled under law, including the notification of such activities to the appropriate law enforcement agencies. Advertiser will indemnify and hold harmless Company from and against all losses, damages, actions or causes of action, suits, claims, demands, penalties and interest arising in connection with or out of any illegal use of the Services or the Website.
Entire Agreement. This agreement constitutes the sole agreement between the parties regarding this Hosting Services Agreement. Any additional work not specified in this contract or any other amendment or modification to this contract must be authorized in a writing signed by the parties. All prices specified in this contract shall be honored for 6 months after both parties sign this contract. Continued services after that time will require a new agreement.
Fair Construction. This Agreement shall be given a fair and reasonable construction in accordance with the intention of the parties and without regard to the identity of the drafter thereof.
Relationship of the Parties. Nothing contained in this Agreement shall be deemed or interpreted by the Parties, or any third party, as creating a principal-agent relationship, partnership, or joint venture between the Parties.
Waiver. Failure of either party to insist upon the strict performance of any of the Agreement’s terms and conditions, or failure to exercise any rights or remedies provided herein or by law, or to notify the other party in the event of breach, will not release the other part of any of its obligations under the Agreement, nor will any purported oral modification or rescission of this Agreement by either party operate as a waiver of any of the Agreement’s terms. No waiver by either party of any breach, default, or violation of any term, warranty, representation, agreement, covenant, right, condition, or provision hereof will constitute a waiver of any subsequent breach, default, or violation of the same or other term, warranty, representation, agreement, covenant, right, condition, or provision.
Governing Law and Venue. This Agreement shall be governed and construed in accordance with the laws of the State of Washington, without giving effect to the principles of conflict of law thereof. In addition, each of the parties hereto (a) consents to submit itself to the personal jurisdiction of Washington state courts in the event any dispute arises out of this Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (c) agrees that it will not bring any action relating to this Agreement in any court other than a state court sitting in the State of Washington.
Advertiser may not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without Evolve 24/7′s prior written approval shall be null and void. All terms and provisions of these Terms and Conditions and each Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
These Terms and Conditions and the related Agreement constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Agreement. The Agreement may be executed in counterparts, each of which shall be an original and all of which together will constitute one and the same document.
In the event of any inconsistency between the terms of an Agreement and these Terms and Conditions, the terms of the Agreement will prevail. The laws of the State of Washington shall govern all Agreements. Evolve 24/7 and Advertiser agrees that any claims, legal proceeding or litigation arising in connection with an Agreement (including these Terms and Conditions) shall be brought solely in Washington, and the parties consent to the jurisdiction of such courts. No modification of these Terms and Conditions or any Agreement shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
ATTORNEY FEES: In the event of any legal action or proceeding initiated by either party in order to enforce the Agreement or any provision hereof, or in connection with any alleged dispute, breach, default, interpretation, or misrepresentation in connection with any provision contained herein, the non-prevailing party will pay the prevailing party’s reasonable attorneys’ fees and costs incurred in connection with such action or proceeding. These costs include, but are not limited to, the costs of pursuing or defending any legal action that may include an appeal, discovery, or negotiation and preparation of settlement arrangements.
The Advertiser agrees that, except as otherwise provided for in this paragraph, all claims and disputes that arise out of or relate in any way to its advertisements or these terms and conditions shall be resolved either by (a) binding arbitration by a sole arbitrator in Clark County, Washington, or (b) binding non-appearance based arbitration conducted by telephone, online, or based solely on written submission. Arbitration under this Agreement shall be conducted through American Arbitration Association or a comparable alternative dispute resolution provider mutually agreed upon by the parties. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. With respect to any claims or disputes the Advertiser intends to bring on behalf of a class, it further agrees to arbitrate whether a class should be certified before bringing such action in a court of law. If the arbitrator refuses to certify the class, the Advertiser will continue to resolve its individual claims or disputes through binding arbitration. If the arbitrator finds a class should be certified, the Advertiser may file the class action in a court located in Clark County, Washington. Claims for injunctive or other equitable relief pending the conclusion of an arbitration under this section must also be brought in a court in Clark County, Washington. For purposes of such relief or remedy, or any other court proceeding under this section, the Advertiser agrees to submit to the exclusive jurisdiction of the state and federal courts located in Clark County, Washington.
The Advertiser agrees that Evolve 24/7 may provide effective notice to the Advertiser by sending an email or mail to the email address or mailing address specified in its Agreement, and the notice shall be deemed received when sent. The Advertiser agrees that any notice it sends to Evolve 24/7 shall be sent via recognized overnight courier or certified mail, return receipt requested, to EVOLVE 24/7, LLC., 1002 Main St, Vancouver, WA. 98660, and it shall be deemed received when such notice is received by Evolve 24/7.