PSClickWizard Terms of Service - PSClickWizard
These Terms of Service ("TOS") are entered into by the customer signing these terms or any document that references this TOS or that accepts this TOS electronically ("Customer") and The Pennysaver Group ("PS"). This TOS governs Customer's participation in PS's PSClickWizard internet advertising services, and in order forms executed by and between the parties ("Order Forms") and/or Customer's online management of any advertising campaigns accessed as part of the services offered by PS. This TOS and any applicable insertion orders are collectively referred to as the "Agreement."
All Customers must agree to the following PS Terms and Conditions online in order to participate in the PSClickWizard program and purchase PSClickWizard products and services.
1.ACCEPTANCE OF TERMS
PS provides its service to Customers subject to the TOS, which may be updated by PS from time to time without notice to the Customer. The most current version of the TOS may be reviewed at any time at: http://www.Amazing Media.com/tos. In addition, when using particular PS owned or operated services, the Customer and PS shall be subject to any posted policies and guidelines or rules applicable to such services, which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.
2.DESCRIPTION OF SERVICE
Generally. PS will provide Customer with assistance in online advertising strategies, creation of suggested ad copy, and purchase of ad placement with various online search engine businesses that accept advertisements for Customer (each entity being a "Publisher", and collectively, PS's services above being the "Service") as part of an overall advertising campaign. For purposes of this TOS, each online advertisement generated and sold through the Service shall be deemed an "Ad," and the overall purchasing decisions for such Ad among Publishers shall be deemed the "Advertising Campaign".
Customer understands and agrees that the Service is made available through the PSClickWizard product, which allows users of the Service to purchase specified volumes of Ads, measured on a pay-per-click ("PPC") traffic basis, through multiple Publishers. PS may, at its sole discretion, determine the Publishers from whom the volume of PPC will be obtained. Customer understands and agrees that the Service may include certain communications from PS, such as service announcements, administrative messages, and that these communications are considered part of PS customer communication and the Customer will not be able to opt out of receiving them.
For each Advertising Campaign, Customer will provide PS with ad information, ad content and ad URLs (the "Content"), and PS will generate as part of the Service a suggested Ad, including ad copy that contains the Content (the "Creative"). As between the parties, Customer owns all Content, including all intellectual property rights thereto, and PS owns the Creative (excepting the Content contained therein) and the Service in whole and in part, and all intellectual property rights thereto.
Customer understands and agrees that all Ad placements are made subject to the terms and conditions of applicable Publishers for accepting and purchasing such Ads. Customer agrees to such terms and conditions, the contents of which are incorporated herein by reference.
As part of the Service, PS will provide Customer with access to PS's Merchant Center which provides various information about Customer's applicable Advertising Campaigns, including activity reports. While PS uses its reasonable efforts to ensure that the information available through the Service is accurate and timely, Customer understands and agrees that the Service is provided "as-is" and that PS assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any data provided within or generated through the Service, including any user communications or personalization settings.
The Customer is responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). The Customer is responsible for those fees. In addition, Customers must provide and are responsible for all equipment necessary to access the Service.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new PS products and services, shall be subject to this TOS.
The Services are offered under various product names as identified in the Order Form. The Order Form details the duration of the Advertising Campaign by number of clicks or by duration of time (such period shall be deemed the "Advertising Campaign Term"), the classification of Customer's business and related pricing of such product, and related matters, all as set forth in this TOS and the Order Forms.
Guaranteed Clicks. PS's "Guaranteed Clicks" product is based on an annual or bi-annual term and price, not a monthly term and price, and the number of Guaranteed Clicks set forth on the Order Form shall be equal to the number of aggregate clicks on Customer's Ad over the course of the annual period. Customer acknowledges and understands that clicks on an Ad that is presented with a Publisher are consumer driven and are directly correlated with a consumer's buying interest in an advertiser's offer of goods and services. Due to seasonality, duration of the contract, economic business conditions, consumer sentiment and other factors beyond PS's control, the actual number of clicks received per month may vary. PS uses its proprietary technology to monitor and meter performance of Ad buys throughout the Advertising Campaign Term, and targets such Ad buys with Publishers to complete the number of Guaranteed Clicks by the end of the Advertising Campaign Term. At the end of the term, the Customer's Advertising Campaign will continue on a month to month basis unless canceled in writing within 30 days of the end of the Customer's Advertising Campaign.
Budget. PS offers a "Budget" product which provides an initial purchase commitment for the period set forth in the Order Form, and thereafter continues at the same price with a monthly renewable term.
Dynamic Web Content Replacement. Certain products may include the Dynamic Web Content Replacement feature. If the product selected by the Customer includes this feature among the Services, PS will direct online traffic intended for the Customer's website to a webpage developed for the Customer that will either be a Landing Page or a dynamically created webpage in which PS may substitute contact information for Call Tracking phone numbers or email addresses which allow PS to track the traffic directed to the Customer. A "Landing Page" is a website that users will be directed to when an ad generated and distributed to the Publisher by PS is placed on the Customer's behalf. Customer agrees that on the Landing Page or any other dynamically created web pages, all Content shall be owned by Customer, but all Creative therein shall be owned by PS.
While PS will take reasonable measures to ensure that the dynamically created webpage is generally accessible through the Internet, PS does not warrant that it can be accessed through all Internet browsers, or through any device that can access the Internet. In all events, PS shall have no liability in connection with any failure of availability or usability of any dynamically created webpage or other Internet site. PS may, from time to time, change the format of the Landing Page or dynamically created webpage.
3.PAYMENT
Customer agrees to pay PS the rates set forth in the Order Form for the applicable Advertising Campaign package, at the intervals set forth in the Order Form. Products and rates are determined based on Customer's business category selection during the purchase process, provided that PS reserves the right to review such selections and reallocate Customer's selected category and related pricing if, in PS's reasonable discretion, Customer business is more accurately represented by such different category. In addition, PS reserves the right to change these rates at any time immediately and without notice. Notwithstanding the foregoing, PS shall use commercially reasonable efforts to notify you in advance of any such changes.
4.TERM AND TERMINATION.
The term of Customer's Advertising Campaign, and the duration of the Services and of this TOS will begin on the date of execution of the Order Form(s) and shall continue until the conclusion of the Advertising Campaign Term. At the end of the term, the Customer's Advertising Campaign will continue on a month to month basis unless canceled in writing within 30 days of the end of the Customer's Advertising Campaign.
Customer agrees that PS may, under certain circumstances and without prior notice, immediately terminate Customer's PSClickWizard account, any associated email address, and access to the Service. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by Customer (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 Customer in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by Customer in connection with the Services. Termination of Customer's PSClickWizard account includes (a) removal of access to all offerings within the Service, (b) deletion of Customer's password and all related information, files and content associated with or inside Customer's account (or any part thereof), and (c) barring of further use of the Service. Further, Customer agrees that all terminations for cause shall be made in PS's sole discretion and that PS shall not be liable to Customer or any third party for any termination of Customer's account, any associated email address, or access to the Service.
5.AGENCY
Customer represents and warrants that (a) it is authorized to act on behalf of and has bound to this Agreement any third party for which Customer advertises (a "Principal"), and (b) as between Principal and Customer, the Principal owns any rights to Content provided for Ads.
6.CANCELLATION & REFUNDS
Customer has the limited right to cancel Customer's account to the Service at any time during the Advertising Campaign Term, subject to the terms of this Section, and provided that (i) for all products, Customer commits to purchase on a nonrefundable basis a minimum of three (3) months of Service, (ii) the completion of Customer's any pre-paid monthly Service fees shall not be refundable, and (iii) for any cancellation, Customer must provide PS with at least two (2) weeks written notice prior to the processing of the following month's payment. In the event a Campaign is cancelled, Customer may be charged a cancellation fee of $100 at the discretion of PS. If a Campaign is cancelled, Customer will be charged the established set up fee to restart the Campaign in the future.
For all products, all monies associated with Ad purchases with applicable Publishers that are already scheduled and committed as of the date of any cancellation of Customer's account shall be nonrefundable.
Upon cancellation of the Advertising Campaign prior to the expiration of the Advertising Campaign Term for the Guaranteed Clicks product, PS will measure the pro-rated performance over the Advertising Campaign Term and will charge Customer a final payment for any amount in excess of the pro-rated target paced amount of clicks, not to exceed 125% of the pro-rated target paced amount. If the cumulative amount billed is in excess of the pro-rated target performance, the difference will be refunded.
For the Budget product, PS will allocate the entirety of Customer's applicable budget for that product over the course of the Advertising Campaign Term. In the event that a portion of Customer's budget has not been used as of such date, the pro-rata portion will be refunded to Customer promptly after the end of the Advertising Campaign Term.
7.Customer's REGISTRATION OBLIGATIONS
In consideration of Customer's use of the Service, Customer represents that it is of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. Customer also agrees to: (a) provide true, accurate, current and complete information about Customer as prompted by the Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Customer provides any information that is untrue, inaccurate, not current or incomplete, or PS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, PS has the right to suspend or terminate Customer's account and refuse any and all current or future use of the Service (or any portion thereof).
8.PS PRIVACY POLICY
Registration Data and certain other information about Customer is subject to our Privacy Policy. For more information, see our full privacy policy here: http://www.PSClickWizard.com/privacy
9.CUSTOMER ACCOUNT, PASSWORD AND SECURITY
Customer will receive a user ID, password and account designation upon completing the Service's registration process. Customer is responsible for maintaining the confidentiality of the password and account and is fully responsible for all activities that occur under Customer's password or account. Customer agrees to (a) immediately notify PS of any unauthorized use of Customer's password or account or any other breach of security, and (b) ensure that Customer exits from Customer's account at the end of each session. PS cannot and will not be liable for any loss or damage arising from Customer's failure to comply with this Section.
10.CUSTOMER CONDUCT
PS does not control the Content that is made available by Customer for use via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will PS be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
Customer agrees to not use the Service to: make available via the Service any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or is unlawful, harmful, or otherwise objectionable.
Customer acknowledges that PS may or may not pre-screen Content, but that PS and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, PS and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. Customer agrees that Customer must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by PS or submitted to PS, including without limitation information in PS marketing materials, website content, creative advertising designed for you or other customers, and in all other parts of the Service.
Customer acknowledges, consents and agrees that PS may access, preserve and disclose Customer's account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to Customer's requests for customer service; or (e) protect the rights, property or personal safety of PS, its users and the public.
Customer understands that the technical processing and transmission of the Service, including Customer's Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Customer understands 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 PS and/or content providers who provide content to the Service. Customer may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
11.CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION IN THE SERVICE
PS does not claim ownership of Content that Customer submits or makes available for inclusion on the Service. However, with respect to Content, Customer submits or makes available for inclusion in an Ad, Customer grants PS a worldwide, royalty-free and non-exclusive license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purposes of providing and promoting the specific Ad to which such Content was submitted or made available. This license exists only for as long as Customer elects to continue to include such Content on the Service and will terminate at the time Customer removes or PSClickWizard removes such Content from the Service.
12.INDEMNIFICATION
Customer agrees to indemnify and hold PS and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys" fees, made by any third party due to or arising out of Content Customer submits, posts, transmits or otherwise makes available through the Service, Customer's use of the Service, Customer's connection to the Service, Customer's violation of the TOS, or Customer's violation of any rights of another.
13.NO RESALE OF SERVICE
Customer agrees not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
14.MODIFICATIONS TO SERVICE
PS 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. Customer agrees that PS shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Service.
15.PS PROPRIETARY RIGHTS
Customer 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. Customer 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. PS grants Customer a personal, non-transferable and non-exclusive right and license to use its Software through a computer; provided that Customer 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 any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. Customer agrees not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. Customer agrees not to access the Service by any means other than through the interface that is provided by PS for use in accessing the Service.
16.DISCLAIMER OF WARRANTIES CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT:
a. CUSTOMER’S USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARPSERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FIPSESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b.PS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARPSERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c.ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM PS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
17.LIMITATION OF LIABILITY
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT PS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARPSERS AND LICENSORS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PS 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 CUSTOMER’S TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
18.NO THIRD-PARTY BENEFICIARIES
Customer agrees that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.
19.NOTICE
PS may provide Customer with notices, including those regarding changes to the TOS, by email, regular mail or postings on the Service.
20.TRADEMARK INFORMATION
All PSClickWizard, including the PSClickWizard logo, trademarks and service marks, and other PSClickWizard product and service names are trademarks of PS, Inc. Without PS's prior permission, Customer agrees not to display or use in any manner the PSClickWizard marks.
21. GENERAL INFORMATION
Entire Agreement: The TOS, together with applicable Order Forms, constitutes the entire agreement between Customer and PS and governs Customer's use of the Service, superseding any prior agreements between Customer and PS with respect to the Service. Customer also may be subject to additional terms and conditions that may apply when Customer use or purchase certain other PS services, affiliate services, third-party content or third-party software. Choice of Law and Forum: The TOS and the relationship between Customer and PS shall be governed by the laws of the State of Maryland without regard to its conflict of law provisions. Customer and PS agree to submit to the personal and exclusive jurisdiction of the courts located within Anne Arundel, Maryland.
Waiver and Severability of Terms: The failure of PS to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties" intentions as reflected in the provision and the other provisions of the TOS remain in full force and effect.
Statute of Limitations. Customer 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. The section titles in the TOS are for convenience only and have no legal or contractual effect.