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Advertising Terms
Advertising Terms and Conditions
1. This application is an offer from Applicant to Publisher and unless rejected by the Publisher within 90 days after the application date on the face page, this application shall be deemed accepted. If the applicant wishes to cancel advertising Applicant must notify publisher in writing no later than 60 days before the close date of the next issue(s). Publisher will furnish Applicant with the close date(s) upon request.
2. The scheduled payments for each item of advertising are due upon receipt of the invoice. If applicant fails to make payment within 15 days of the invoice date Publisher has the right at its option to 1) charge interest on applicant's account at the rate of 1 1/2% per month or the highest rate allowed by law, whichever is less. 2) declare the entire balance of the total amount payable under this application immediately due and payable. 3) Omit advertising from the Applicant and disable or redirect Applicant's call forwarding and online services. 4) Impose a re-start fee of $115. 5) retroactively revoke any discounts granted to Applicant under this or any other agreement with Publisher; recover all costs including without limitation reasonable collection agency fees; attorney's fees; and any other legal or equitable remedies available to us. These remedies are cumulative and the exercise of any one of them shall not prevent an exercise of the others.
3. Contract term. Unless otherwise agreed to in writing by Publisher's President, this contract is for a 12-month term and it automatically renews for a successive 12-month term unless canceled within 60 days of the contract anniversary date. Contracts canceled before the end of their 12-month term may be subject to retroactive revocation of any discounts and a recalculation of monthly charges from the beginning for the current term.
4. Any payments received from Applicant may be applied by Publisher to advertising charges due from Applicant under any other agreement Applicant has with Publisher and to charges for advertising Applicant has in successive issues of the directory(s).
5. Publisher reserves the right to extend or reduce not by more than six (6) months the issue date and period of the directory. If the issue life is extended the customer agrees to pay a pro-rated charge for the extended period.
6. In the event the Publisher cancels this contract any payments or deposits made by Applicant may, at the discretion of Publisher, be applied to commissions, typesetting, design, copywriting, hosting and bookkeeping charges.
7. Publisher reserves the absolute discretionary right to determine the appearance, format and content of our yellow pages directory(s) and to reject any or all trade name, trademarks, advertising, and related copy at any time prior to publication. Publisher does not guarantee the position of any item of advertising.
8. Publisher reserves the right to change any classification headings that are shown on the face of the contract to conform with production's standard headings.
9. Applicant agrees that any advertising copy or artwork prepared by Publisher shall be retained and owned by Publisher unless otherwise agreed in writing. Applicant further agrees domain names, websites, call tracking numbers, directory listings, and other online services may be transferred at Applicant's request upon Applicant paying the full contract amount plus any other late payments, fees and interest owed to Publisher.
10. Publisher liability shall be limited to the amount of any deposit collected for any omitted advertising. If any error is made in an item of advertising that does appear, applicants remedy shall be limited to an adjustment in billing equal to the difference in value between the item ordered and the item as published.
11. Publisher agrees to exercise reasonable care that the copy and listings are correctly printed in each directory issue. If a proof is e-mailed to Applicant and said proof is not returned by Applicant within the time set forth on the proof sheet, it is mutually understood and agreed that said proof shall be assumed to be correct.
12. Applicant warrants that Applicant is authorized to advertise the business, service, product, trademark, or trade name described in the copy and listings furnished; Applicant agrees to indemnify and hold Publisher harmless from any and all claims, demands, suits, damages, causes of action or liabilities, and will pay to Publisher all reasonable expenses, including Attorney's fees, that may result if these warranties are breached.
13. This contract shall benefit and be binding on the successors, assigns, and personal representatives of Applicant. If the Applicant sells or assigns Applicant's business to third party(ies) this contract shall also be binding on each such third party(ies) and must be disclosed as a binding obligation of the new owner. If for any reason the new owner fails to honor the contracted terms, the Applicant agrees Applicant will be jointly and severally responsible for the amounts due including any expenses incurred, including reasonable attorney's fees, court costs incurred by Publisher to enforce the terms of this agreement.
14. In the event any party of this contract is determined by a court of competent jurisdiction to be void, then and in that event said void part of the contract shall be considered to be severable from the remaining provisions of this contract shall remain in full force and effect.
15. Applicant authorizes Localbychoice/Mountaineer Yellow Pages to initiate either an electronic debit or to create and process a demand draft against Applicant's bank account whenever Applicant sends a check for payment of goods or services. The amount of the debit and bank account information will be used directly from the check. Applicant acknowledges that the origination of ACH transactions to Applicant's account must comply with the provisioning of United States law.
This payment authorization is to remain in full force and effect until Applicant notifies Localbychoice/Mountaineer Yellow Pages of its cancellation by sending written notice in such time and in such manner to allow both the Mountaineer Yellow Pages and receiving financial institution a reasonable opportunity to act on it.
16. Third-Party Services. Some services provided to Applicant include certain services developed, provided or maintained by third-party service providers (“Third Party Providers”). Access to or use of any those services (“Third Party Services”) is subject to these additional terms: Each Third Party Provider retains all right, title and interest in and to all Third Party Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto. Each Third Party Provider will be a beneficiary of the terms of this User Agreement as to the Third Party Services provided by the Third Party Provider and will have all rights necessary to enforce this User Agreement against Applicant in the case of any breach of those terms.
17. Changes to the Services. You acknowledge that the Third Party Services may change from time to time.
18. Call Recording and Monitoring. If Publisher's Third Party Providers are providing customer service to Applicant directly, then such Third Party Provider may record and/or monitor calls between Customer and agents, employees and/or affiliates of the Third Party Provider regarding the Third Party Services (the "Service Calls"). If the Third Party Services include call recording, the Third Party Providers will record incoming calls between Applicant, or Applicant's agents, employees, and/or its affiliates and people who contact Applicant through the tracking telephone number(s) provided by the Third Party Provider (the "Inbound Calls" and, collectively with Service Calls, "Call Recording and Monitoring"). By this User Agreement, Applicant consents to any and all Call Recording and Monitoring performed by Third Party Providers or their agents, employees and/or its affiliates. Applicant acknowledges that it is responsible for notifying and obtaining consent to Call Recording and Monitoring from all of its agents (including employees and independent contractors) who may be recorded or monitored in a Service Call or Inbound Call (the "Recorded Persons"). It is Applicant's sole responsibility to provide and/or obtain, and Customer covenants that it will provide and/or obtain, all notices, consents, and permissions relating to Recorded Persons as may be required by applicable laws and regulations.
19. Indemnification. Applicant agrees to indemnify, defend and hold harmless Third Party Provider, its parent, subsidiaries, affiliates, successors, officers, directors, employees, contractors, designees and agents from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) relating to or arising from the Customer Content, Applicant's use of the Third Party Services, or breach (or alleged breach) of Customer's representations, warranties and covenants under this User Agreement or the Acceptable Use Policy.
20. Representations and Warranties; Indemnification. Agency and Advertiser hereby represent and warrant (a) they are free to enter into and perform their obligations under the Agreement; (b) the Material does not and will not violate or infringe the intellectual property rights, rights of privacy or publicity or any other rights of any person or entity and does not and will not defame or libel any person or entity, (c) Agency and Advertiser have the right to grant to Localbychoice the rights set forth in the Agreement, and (d) there are not now and in the future there shall not be any claims, liens, encumbrances or rights that attach to or otherwise interfere with the use or telecast of the Material by Localbychoice in accordance with this Agreement. Agency and Advertiser agree jointly and severally to defend, indemnify and hold and save harmless Localbychoice, its officers, employees, directors, agents, related corporations, affiliates, networks, successors and assigns, from and against any and all liability damages, losses, or expenses of any kind (including reasonable attorneys’ fees) incurred by them in connection with any claims of any kind that arise out of or in connection with () any breach or alleged breach by Agency or Advertiser of this Agreement, including but not limited to, the aforementioned representations or warranties; and (ii) the content of any advertisement(s), Material(s), website(s), or other content or material(s) that can be linked to through an advertisement. Advertiser and/or Agency may not agree to any settlement that imposes any obligation or liability on an indemnified party without such party’s prior express written consent. Localbychoice agrees to hold and save Agency and Advertiser harmless against all liability resulting from Localbychoice’s use of programs not furnished by Agency or Advertiser. This Section 7 shall survive the expiration or earlier termination of the Agreement.
21. LIMITATION OF LIABILITY. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, LOCALBYCHOICE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY PRODUCT OR SERVICE PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY THAT ANY ADVERTISEMENT WILL BE BROADCAST OR DISPLAYED WITHOUT INTERRUPTION OR ERROR. WITH RESPECT TO ONLINE ADVERTISEMENTS, ADVERTISER AND AGENCY ACKNOWLEDGE THAT LOCALBYCHOICE HAS NOT MADE ANY GUARANTEES WITH RESPECT TO THE USE OF STATISTICS OR LEVELS OF IMPRESSION THAT WILL BE DELIVERED. IF LOCALBYCHOICE PROVIDES ADVERTISER AND/OR AGENCY WITH ANY ESTIMATED USAGE AND/OR IMPRESSION STATISTICS, IT DOES SO ONLY AS A COURTESY AND SHALL NOT BE HELD LIABLE FOR ANY CLAIMS RELATING TO SAI STATISTICS. AS A MATERIAL INDUCEMENT FOR LOCALBYCHOICE TO PROVIDE THE SERVICES AT THE RATES AND CHARGES STATED HEREIN, AGENCY AND ADVERTISER AGREE THAT, IN NO EVENT, SHALL LOCALBYCHOICE BE LIABLE FOR (A) ANY LOSS, EXPENSE OR DAMAGE ASSOCIATED WITH AGENCY, ADVERTISER OR A THIRD PARTY’S LOSS OF REVENUE, PROFITS, SAVINGS, BUSINESS OR GOODWILL; OR (B) ANY INDIRECT, EXEMPLARY, PROXIMATE, CONSEQUENTIAL OR INCIDENTAL DAMAGES AND EXPENSES OF ANY NATURE RELATING TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER LOCALBYCHOICE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADVERTISER AND AGENCY’S SOLE AND EXCLUSIVE REMEDY IN THE CASE OF A BREACH OF THIS AGREEMENT BY LOCALBYCHOICE SHALL BE LIMITED TO A REFUND OF THE PRICE PAID FOR THOSE SERVICES NOT PROVIDED IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AS A RESULT OF LOCALBYCHOICE’S BREACH. THIS SECTION 10 SHALL SURVIVE EXPIRATION OR EARLIER TERMINATION OF THE AGREEMENT. LOCALBYCHOICE SHALL NOT ASSUME ANY LIABILITY FOR GOODS SOLD AT THE INCORRECT PRICE, WHETHER OR NOT DUE TO LOCALBYCHOICE’S ERROR.
22. Applicant certifies that Applicant is the Applicant or is authorized to act on behalf of the Applicant by executing this Application. Applicant admits having read all of the foregoing and neither applicant nor publisher shall be bound by any agreement or understanding not expressed in this application.