Terms Of Service
TERMS AND CONDITIONS OF SERVICE OF INTERNET ADVERTISING SUBSCRIPTION AGREEMENT
These Terms and Conditions of Service of Internet Advertising Subscription Agreement (the “TOS”) are entered into by the client who has signed an Internet Advertising Subscription Agreement (the “Subscription Agreement”) incorporating this TOS, or any document that references or incorporates this TOS, or that has accepted this TOS electronically (“Client”). This TOS governs the services that First Choice Media, an Illinois corporation, (“First Choice”) will provide to Client, as well as any and all Subscription Agreements executed by and between the parties. This TOS and any applicable Subscription Agreements or documents referencing or incorporating the TOS are collectively referred to as the “Agreement.”
1. ACCEPTANCE OF TERMS
First Choice provides its services to Client subject to this TOS. First Choice may update the TOS from time to time and at any time with notice to the Client. In addition, when using particular First Choice owned or operated services, the Client and First Choice shall be subject to all First Choice policies, guidelines, and rules applicable to such services, which First Choice will post from time to time on the TOS portion of First Choice’s website which is accessible by the following URL: http://firstchoicemedia1.com/tos/. All such policies, guidelines, and rules are hereby incorporated by reference into this TOS. Client’s continued use of the Service after any updates constitutes Client’s tacit agreement with such updates.
2. DESCRIPTION OF SERVICE
A. On the executed Subscription Agreement, and for each advertisement Client wishes to place, Client will provide First Choice with approximately four (4) or five (5) lines of description of its products and/or services, along with the logo, if any, that Client wishes to promote (each description and logo, if any, hereinafter collectively referred to as the “Ad”) for publication on Geo-domain sites First Choice owns. First Choice will publish Client’s Ad to appear on Geo-domain sites it owns. A Geo-domain is a URL that is formed when adding a category to a town/city, such as “Schaumburgplumbers.” Category and Town information listed in the Agreement are the basis of the Geo-domain site names, although the Category and Town order appearing in domain names may vary. Sometimes the town/city will appear first and sometimes the category will appear first in the URLs/domains owned by First Choice. Domain extensions, such as .com, .net, or .org. may vary as well. Client acknowledges and agrees that no guarantee as to the URL name or to the URL extension can be given. First Choice and its agents will perform Search Engine Optimization (“SEO”) on its Geo-domain sites which are designed to help increase the ability of its sites to be found by customers through internet searches when using appropriate search terms. Client acknowledges and agrees that First Choice requires up to four (4) to six (6) weeks from the commencement of First Choice’s engagement to publish Client’s information on First Choice sites and to have the initial search engine optimization performed on behalf of the Client.
B. As used in this TOS, First Choice’s foregoing services will be referred to as the “Service.” Client understands and agrees that the Service is made available through the First Choice product and its suppliers, which allows users of the Service to have their Ads appear on First Choice Geo-domain sites.
C. If Client sees or learns of any errors with respect to any Ads, Client shall promptly advise First Choice of same so that First Choice can correct them. As between the parties, Client owns all logos supplied, including all intellectual property rights thereto, and First Choice owns the creative aspects of the Ad and the Service in whole and in part, and all intellectual property rights thereto.
D. Client understands and agrees that all Ad placements are made subject to the terms and conditions of First Choice for accepting such Ads. Gold Package placements (defined below) are made by seniority of the date an Ad is placed and accepted by First Choice. Cancellation of an Ad by client or by First Choice will terminate original placement position. Additional features, added at a later date, may change positioning.
E. While First Choice will use its reasonable efforts to ensure that the information available through the Service is accurate and timely, Client understands and agrees that the Service is provided “as-is” and that First Choice assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any data provided within or generated through the Service.
F. First Choice’s Service is referred to as First Choice’s “Gold Package.” Unless explicitly stated in this TOS or otherwise agreed by the parties in writing, any new features that augment or enhance the current Service, including the release of new First Choice products and services, shall be subject to this TOS with additional charge. Client will be given the option of enhancing its Gold Package, if and when, any features are added. If Client approves these additional features in writing, any additional charges will commence on the next monthly bill generated for Client.
G. First Choice will take reasonable measures to ensure that the Geo-domain created web sites are generally accessible through the Internet. First Choice does not represent or warrant that its Geo-domain created web sites can be accessed through all Internet browsers, or through any device that can access the Internet. In all events, First Choice shall have no liability in connection with any failure of availability or usability of any of its Internet site(s). First Choice may, from time to time, change the format of its sites and the format of Client’s Ads.
H. If there are any trademark, service mark, copyright or other intellectual property issues for First Choice or Client on sites that require a site to be temporarily or permanently taken down, Client will be offered a replacement site. If the replacement site is not reasonably satisfactory to Client, Client’s monthly service charge will be reduced proportionately by the number of sites taken down, with the remaining portion of the monthly service charge remaining in full force and effect.
3. TERM AND TERMINATION
The term of Client’s engagement of First Choice will begin on the date of execution of the Subscription Agreement and, unless sooner terminated as herein provided or unless extended by written agreement between Client and First Choice, will end upon the completion of twelve full calendar (12) months thereafter (the “Initial Period”), provided, however, that the Initial Period shall automatically renew on a monthly basis after the completion of the Initial Period (the “Extension Period”), provided, further, that, after the completion of the Initial Period, either party may terminate the Extension Period by providing the other party with at least thirty (30) days notice prior to the first day of a calendar month. As used herein, the word “Term” shall mean the Initial Period and the Extension Period.
Notwithstanding the foregoing, Client and First Choice agree that First Choice may at any time immediately terminate the Term of Client’s engagement of First Choice and the provision of Service to Client for “Cause” without prior notice. As used in the Agreement, the term “Cause” for such termination shall include (a) Client’s actual or threatened breach or violation of any provision of the Agreement or any First Choice posted policies, guidelines, or rules applicable to the Service, (b) a request by law enforcement or other government agency to terminate the engagement, (c) a request by Client (self-initiated account deletions), (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 Client in fraudulent, illegal, or pornographic activities, (h) nonpayment of any fees Client owes in connection with the Service, or (i) any other conduct on the part of Client that First Choice believes has created or may lead to the creation of a situation that may disrupt or interfere with the efficient, profitable, safe, or harmonious operation of First Choice or the Service, or any conduct which could bring disrepute to First Choice or its Service.
Termination of the Term of Client’s engagement of First Choice includes (1) removal of access to all offerings within the Service, (2) deletion of Client’s password (if issued) and all related information, files and content associated with or inside Client’s account (or any part thereof), and (3) unavailability of further use of the Service. Client agrees that all terminations for Cause shall be made in First Choice’s sole discretion and that First Choice shall not be liable to Client or any third party for any termination of Client’s account, any associated e-mail address, or access to the Service.
Concurrently with the execution and delivery of the Subscription Agreement, Client agrees to pay First Choice a subscription fee as follows a non-refundable combined set-up fee and either:
A. the fee for the first four (4) months of Service during the Initial Period in the amount set forth on the Subscription Agreement. On the first day of each month beginning with the fifth (5th) month of the Initial Period, Client will be automatically charged or debited by a direct charge or debit to the charging or debiting source provided by Client, or
B. the fee for the first eleven (11) months of Service during the Initial Period in the amount set forth on the Subscription Agreement, provided, however, the Client will receive twelve (12) months of Service during the Initial Period. Beginning on the first day of the thirteenth (13th) month of Service and on each subsequent anniversary of the Subscription Agreement, the card or checking account will be automatically charged or debited the monthly subscription fee pursuant to the terms of the TOS unless Client elects to pre-pay for another twelve (12) months of Service by paying the full cost of only another eleven (11) months of Service.
If at any time during the Initial Period Client fails to pay First Choice as set forth above, then the entire remaining balance of the subscription fee for the Initial Period shall accelerate and be due and owing from Client to First Choice. In addition, an administrative fee equal to the lower of the highest rate allowed by applicable law or one and one-half percent (1.5%) per month will be charged and due and owing from Client on all overdue payments.
Client represents and warrants that (a) it is authorized to act on behalf of and has bound to the Agreement any third party for which Client advertises (a “Principal”), and (b) as between Principal and Client, the Principal owns any rights to Content provided for Ads.
6. CLIENT’S REGISTRATION OBLIGATIONS
In consideration of Client’s use of the Service, Client represents that the person signing the Agreement on behalf of client is of legal age to form a binding contract and that Client is not a person or entity barred from receiving the Service under the laws of the United States or other applicable jurisdiction. Client also agrees to: (a) provide true, accurate, current and complete information about Client and (b) maintain and promptly update information about Client to keep it true, accurate, current and complete. If Client provides any information that is untrue, inaccurate, not current or incomplete, or First Choice has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, and without limiting any other rights or remedies that First Choice has under the Agreement or under applicable law, First Choice has the right to suspend or terminate Client’s account and refuse any and all current or future use of the Service (or any portion thereof).
7. CLIENT ACCOUNT, PASSWORD AND SECURITY
In the future, First Choice may provide Client with a user ID, password and account designation upon completing the registration process for the Service. Client is responsible for maintaining the confidentiality of the password and account and is also fully responsible for all activities that occur under or in connection with Client’s password or account. Client agrees to (a) immediately notify First Choice of any unauthorized use of Client’s password or account or any other breach of security, and (b) ensure that Client exits from Client’s account at the end of each session. First Choice shall not be liable for any loss or damage arising from Client’s failure to comply with this Section.
8. CLIENT CONDUCT
A. First Choice does not control the Content that is made available by Client for use via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will First Choice be liable in any way for any Content, including any errors or omissions in any Content, or any loss or damage of any kind incurred by the Client or any third party as a result of the use of any Content posted, e-mailed, transmitted or otherwise made available via the Service.
B. Client agrees to not use the Service (1) to make available via the Service any Content that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any person or entity, or (2) in any matter that is unlawful, harmful, offensive, or otherwise objectionable.
C. Client acknowledges and agrees that First Choice may or may not pre-screen Content but that First Choice and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, remove, or move any Content that is available via the Service. Without limiting the generality of the foregoing, First Choice and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. Client agrees that Client 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, Client acknowledges and agrees that Client may not rely on any Content created by First Choice or submitted to First Choice, including information in First Choice marketing materials, website content, creative advertising designed for Client or other clients, and in all other parts of the Service.
D. Client acknowledges and agrees that First Choice may access, preserve, and disclose Client’s account information and Content if required to do so by law or court or administrative order or by virtue of a good faith belief that such access preservation or disclosure is reasonably necessary to: (1) comply with legal process; (2) enforce the TOS; (3) respond to claims that any Content violates the rights of any third parties; (4) respond to Client’s requests for Client Service; or (5) protect the rights, property or personal safety of First Choice, its employees, users, and/or the public.
E. Client acknowledges and agrees that the technical processing and transmission of the Service, including Client’s Content, may involve changes to conform and adapt to technical requirements of connecting networks or devices. Client acknowledges and agrees 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 First Choice and/or content providers who provide content to the Service. Client 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.
9. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION IN THE SERVICE
First Choice does not claim ownership of Content that Client submits or makes available for inclusion on the Service. However, with respect to Content that Client submits or makes available for inclusion in an Ad, Client grants First Choice a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly distribute and 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 Client elects to continue to include such Content on the Service and will terminate at the time Client removes or First Choice removes such Content from the Service.
In addition to any protection available to First Choice under applicable law, Client agrees to indemnify and hold First Choice and its subsidiaries, affiliates, directors, officers, members, owners, agents, employees, agents, partners and licensors harmless from and against any and all claims, demands, actions, judgments, liabilities, losses, costs, and expenses, including reasonable attorneys’ fees (hereinafter collectively “Claims”) made by any third party due to or arising out of the Content Client submits, posts, transmits or otherwise makes available through the Service, Client’s use of the Service, Client’s connection to the Service, Client’s breach or violation of the TOS or any representation contained in the TOS, or Client’s violation of any rights of any other person or entity. Without limiting the generality of the foregoing, such claims include claims of ownership, copyright, trademark, and/or service mark infringement, misrepresentations, libel, slander, false advertising, unfair or deceptive business or trade practices, violations of governmental rules or regulations, and/or violation of local, state, and or federal law. This Section shall survive the termination of the Term of Client’s engagement of First Choice.
11. MODIFICATIONS TO SERVICE
First Choice 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. First Choice will make every attempt to keep the service running continually during the Term, however, Client agrees that First Choice shall not be liable to Client or to any third party for any modification, suspension or discontinuance of the Service. If, however, the Service is temporarily not running for seventy-two (72) or more hours continuously for a reason not covered by Section 18 of the TOS, Client’s monthly bill will be adjusted proportionately for the time the Service was not running.
12. FIRST CHOICE PROPRIETARY RIGHTS
Client acknowledges and agrees 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. Client agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part. First Choice grants Client a personal, non-transferable and non-exclusive right and license to use its Software through a computer during the Term of Client’s engagement of First Choice; provided that Client does not (and does not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble, or otherwise attempt to discover or use any source code, sell, assign, license, sublicense, grant a security interest in, or otherwise transfer any right in the Software. Client agrees not to modify the Software in any manner or form, nor to use modified versions of the Software, including for the purpose of obtaining unauthorized access to the Service. Client agrees not to access the Service by any means other than through the interface that is provided by First Choice for use in accessing the Service.
13. DISCLAIMER OF WARRANTIES
CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT:
A. CLIENT’S USE OF THE SERVICE IS AT CLIENT’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FIRST CHOICE AND ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, MEMBERS, OWNERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
B. FIRST CHOICE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET CLIENT’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 CLIENT THROUGH THE SERVICE WILL MEET CLIENT’S EXPECTATIONS; AND (v) ANY ERRORS IN SOFTWARE ASSOCIATED WITH THE SERVICE WILL BE CORRECTED.
C. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT CLIENT’S OWN DISCRETION AND RISK, AND CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM OR DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
D. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM FIRST CHOICE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
E. THE USE OR MISUSE OF CLIENT’S NAME, TRADEMARK, SERVICE MARK, OR OTHER PROPERTY BY A THIRD PARTY, INCLUDING ANOTHER CLIENT OF FIRST CHOICE, SHALL NOT CREATE ANY LIABILITY ON THE PART OF FIRST CHOICE AND SHALL NOT CREATE OR CONSTITUTE A DEFENSE FOR CLIENT AS TO CLIENT’S OBLIGATIONS UNDER THIS AGREEMENT.
14. LIMITATION OF LIABILITY
CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT FIRST CHOICE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, OWNERS, MEMBERS, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO CLIENT FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FIRST CHOICE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT’S TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. THE LIABILITY OF FIRST CHOICE UNDER THIS AGREEMENT TO CLIENT, REGARDLESS OF THE BASIS OF LIABILITY OR THE FORM OF ACTION, WILL IN NO EVENT EXCEED THE AGGREGATE DOLLAR AMOUNT CLIENT HAS PAID TO FIRST CHOICE DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE LIABILITY OF FIRST CHOICE ARISING OUT OF THIS AGREEMENT.
15. NO THIRD-PARTY BENEFICIARIES
Client agrees that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to the Agreement.
First Choice may provide Client with notices, including those regarding changes to the TOS, by e-mail, regular mail, courier service, messenger, or postings on the Service.
17. TRADEMARK INFORMATION
All First Choice marks, including the First Choice logo, trademarks and service marks, and other First Choice product and service names are trademarks of First Choice. Without First Choice’s prior written permission, Client agrees not to display or use in any manner the First Choice marks.
18. FORCE MAJEURE
Neither party to the Agreement will be responsible for delays or failures of performance resulting from acts beyond the control of such party. Such acts include acts of God, strikes, lockouts, riots, acts of war, acts of terrorism, epidemics, government regulations superimposed after the fact, court order, fire, communication line failures, power failures, epidemics, earthquakes, floods, tornadoes, hurricanes, other disasters, or failure or inability of third-party contractors to provide services. Such delays or failures do not include failure to pay invoices when due.
19. STATUTE OF LIMITATIONS
Client agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. Any legal or equitable action concerning the Agreement shall be maintained in any court of competent jurisdiction. As used in this Agreement, the term “any court of competent jurisdiction” shall include only the state and federal courts sitting, or with jurisdiction over actions arising, in Cook County, in the State of Illinois, the jurisdiction, venue, and convenient forum of which are hereby expressly CONSENTED TO by each of the parties.
Each party hereby agrees to cooperate with the other and to execute and deliver all such additional documents and instruments, and to take all such other action, as the other party may reasonably request from time to time to effectuate the provisions and purposes of the Agreement. The headings of Sections contained in the Agreement are merely for convenience of reference and shall not affect the interpretation of any of the provisions of the Agreement. The Agreement is deemed to have been drafted jointly by the parties, and any uncertainty or ambiguity shall not be construed for or against either party as an attribution of drafting to either party. Whenever the context so requires, the singular shall include the plural and vice versa. All words and phrases shall be construed as masculine, feminine or neuter gender, according to the context. Whenever possible, each provision of the Agreement shall be construed and interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the Agreement or the application thereof to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition without invalidating the remainder of such provision or any other provision of the Agreement or the application of such provision to other parties or circumstances. All discussions, correspondence, understandings, and agreements heretofore had or made between the parties are superseded by and merged into the Agreement, which alone fully and completely expresses the agreement between the parties relating to its subject matter, and the same is entered into with no party relying upon any statement or representation made by or on behalf of any party not embodied in the Agreement. Any modification of the Agreement may be made only by a written agreement signed by both of the parties to the Agreement. Whenever the term “include,” “including,” or “included” is used in the Agreement, it shall mean including without limiting the generality of the foregoing. The Agreement may not be assigned by either party, whether by operation of law or otherwise, without the prior written consent of the other party, except that any right, title or interest of First Choice arising out of the Agreement may be assigned to any entity controlling, controlled by, or under common control with First Choice, or succeeding to the business and substantially all of the assets of First Choice. Subject to the foregoing, the Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. No delay on the part of any party in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by any party of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. The waiver of any breach or condition of the Agreement by either party shall not constitute a precedent in the future enforcement of any of the terms and conditions of the Agreement. The signature of any party transmitted electronically (whether via fax, e-mail, Digital Signature, or other media now existing or hereafter developed) shall be treated in all manner and respects, and have the same binding legal effect, as an original signature.