SUBSCRIPTION TERMS OF SERVICE
These Marchex Subscription Terms of Service (these “Terms”), together with the terms set forth on any service order, statement of work, or similar document or online order form that contains a reference to these Terms (each, an “Order”), constitute a legally binding and enforceable services agreement (the “Agreement”) by and between (1) the person or entity accepting these Terms (“Customer”) by entering into the Order via having a duly authorized representative sign or electronically accept the terms of such form; and (2) the applicable subsidiary of Marchex, Inc. designated on the Order (“Marchex”). These Terms shall govern Customer’s access to and use of the information and data services made available by Marchex (collectively, the “Services”) and shall be deemed incorporated by reference into each Order. All capitalized terms used herein shall have the respective meanings ascribed to them in these Terms or the Order, as applicable. Customer and Marchex hereby acknowledge and agree as follows:
- MARCHEX SERVICES.
- Description of Services. The Services are made available as subscription licenses according to any usage limitations and/or allowances as set forth in the Order. Subject to Customer’s payment of the applicable Fees, Marchex hereby grants to Customer a limited, revocable, non-exclusive, non-sublicenseable (except, if applicable, to Clients as provided in Section 1(e) below), non-transferable right to access and use the Services listed on the applicable Order; during the Subscription Term and in accordance with the relevant published operational documentation made available by Marchex for the applicable Services (“Documentation”) and the terms and conditions of this Agreement. The Services may include one or more of the following along with the reporting and delivery of relevant analytics data for the applicable Services in various media (collectively, the “Analytics Data”):
- provisioning of call-through and/or SMS-enabled telephone numbers (the “CTNs”) for Customer to use in connection with its own performance-tracking and/or other analytics purposes including for display or publication on websites or publications (print, electronic, or otherwise) or other media (collectively, “Media”) as determined by Customer from time to time in accordance with these Terms;
- SMS and/or MMS messaging using CTNs (“Messaging Services”);
- tracking and analysis of outbound telephone calls by Customer’s representatives using CTNs (“Outbound Call Tracking Services”);
- the ingestion, processing, analyzing, and archiving of pre-recorded audio and/or other communication records to be provided by Customer (collectively, “Conversation Data”) for the purposes of providing the Services specified on the Order (“Platform Services”).
- Service-specific Terms. The following subsections will apply to the extent the corresponding features and/or functionality of the Services are used by Customer pursuant to this Agreement:
- Call Recording and Conversation Analytics Services. Call recording, transcribing, monitoring, analyzing and archiving under the Services involving CTNs (collectively, the “Recorded Call Services”) are made available as optional product features to the extent included in the applicable Services subscription package set forth on an Order. The Call Recording Services Terms and Conditions (located at https://www.marchex.com/legal/call-recording-terms or such successor URL as Marchex may designate) shall apply to Customer and to any Customer Users using such Services, and are fully incorporated herein by reference.
- APIs and Third-Party Integrations. . Certain Services may enable the import of Conversation Data from, export of Analytics Data to, or other interoperation with one or more third-party applications, systems, products or services for which Marchex makes an integration available (each, a “Third-Party Technology”). If a Third-Party Technology provider modifies its APIs or equivalents in a way that prevents interoperation with the Services, or imposes requirements with respect to interoperability that are unreasonable for Marchex, and if Marchex is unable to accommodate such modifications or requirements after reasonable efforts to do so, then upon reasonable notice to Customer, Marchex may cease to or suspend its provision of interoperability between the Services and the affected Third-Party Technology without liability to Customer. To the extent included in the subscription listed on the Order, Customer may only implement those automated means that are expressly made available or approved in writing by Marchex for the purposes of enabling interoperability between the Services and either Customer’s systems or environment or applicable Third-Party Technology, subject to Customer’s compliance with all programming instructions, and/or standards for accessing Services set forth in the relevant Documentation.
- Outbound Call Tracking and Messaging Services. Customer acknowledges and agrees that Outbound Call Tracking Services are not intended to and may not be used to make calls to any kind of emergency services including 911 or any other public safety answering points for services such as police, fire response, and/or medical services. Marchex will not be liable for any claim, loss or damages whatsoever to the extent arising from or related to any Customer User’s inability to use the Outbound Call Tracking Services to make such emergency calls. Messaging Services together with Outbound Call Tracking Services are collectively referred to herein as “Outbound Services.” All messaging content that Customer uploads or otherwise provides through its use of the Messaging Services and, if applicable, any pre-recorded audio content to be disseminated in connection with Outbound Call Tracking Services is collectively referred to herein as “Content.”
- Conversion Attribution Services. For Services that attribute sales or other conversion events to calls and/or estimate the business impact of a given Media source, Customer may either provide Marchex with the applicable sales or other relevant conversion data (the “Sales Data”) in a mutually-agreed upon format, or if Sales Data is not readily available, work with Marchex to use certain other Analytics Data as a proxy based on specific metrics to be mutually-agreed upon between the parties.
- Platform Services. Customer shall submit its Conversation Data through a mutually-agreed upon transmission method either directly to Marchex or through a Third-Party Technology. Solely to the extent necessary for the interoperation of a Customer-designated Third-Party Technology with the applicable Platform Services: (1) Customer hereby authorizes Marchex to access and retrieve the Conversation Data from its designated Third-Party Technology provider; and (2) Customer agrees to take any and all steps that may be necessary to facilitate Marchex’s access to such Third-Party Technology to enable the ingestion of Conversation Data and the provision of the Platform Services.
- Beta Services. From time to time, Marchex may make available to Customer beta, preview, or other pre-release versions of Services on a trial and/or evaluation basis (collectively, “Beta Services”). Beta Services may be limited in features, functionality or have other limitations as determined by Marchex; may not operate correctly; and may be substantially modified prior to first commercial release, or at Marchex’s option may not be released commercially in the future. Marchex may reduce, modify, or discontinue Beta Services at any time in its sole discretion.
- Professional Services. Upon the request of Customer, Marchex may make available supplemental and/or customized professional services on a fee-based project- or solutions-specific basis, which may include training resources, consulting, customized access set-up, customized reporting or other services (collectively “Professional Services”). Any such Professional Services will be subject to arrangement to be mutually-agreed by the parties in writing either in a separate Order or as detailed in a proposed scope of work together with associated fees provided by Marchex in writing (email sufficing) and accepted by Customer with Marchex only being obligated to deliver, subject to the terms hereof, those Professional Services to the extent defined in such Order or accepted proposal. The availability of some Professional Services may be made contingent on the purchase of a specific Services subscription package. To the extent that Customer engages Marchex on one or more professional services projects (each, a “Project”) the parties agree to work together in good faith to achieve completion of the Project in a timely and professional manner. Customer acknowledges and agrees that a successful Project may depend on completion of certain actions by Customer and/or adherence to schedules within Customer’s control; consequently, the schedule for completion of the Project or any portion thereof may require adjustments if such Customer responsibilities are not completed as anticipated or Customer’s schedules change. Marchex shall bear no liability or otherwise be responsible for delays in the Project occasioned by Customer’s failure to timely complete a required task or adhere to a Customer schedule. Marchex may require that certain Professional Services are subject to specific additional terms and conditions depending on the nature of the request(s).
- Acceptable Use of Services.
- General Customer Responsibilities. Customer will be responsible for: (1) obtaining and maintaining any computer and phone equipment (and the like) as well as, if applicable, account(s) with any Third-Party Technology needed to access and use the Services (collectively, “Equipment”); (2) if applicable, providing any necessary and legally compliant notice and consent processes with respect to the deployment of tags or other applicable online tracking instrumentation provided by Marchex for purposes of displaying CTNs on web-based Media under this Agreement; (3) the accuracy of contact information provided for the recipient(s) of any alerts enabled by Customer in connection with the Services and promptly updating such recipient contact information in Customer’s account dashboard if the information changes or the recipient separates from Customer as well as ensuring that any recipient of SMS alerts has agreed to receive them and that their mobile carrier message and data rates may apply; (4) maintaining appropriate security safeguards with respect to Customer’s account, its Equipment, and any Analytics Data acquired hereunder; (5) each of its agents, representatives, subcontractors, licensees, and any other Customer affiliates that Customer permits to access or otherwise use the Services or any Marchex Materials (each a, “Customer User”), and their respective compliance with the terms of this Agreement as well as with any applicable Third-Party Technology license or service terms; and (6) its use of the Analytics Data and the security and integrity thereof after it is transmitted from the Service(s) to Customer and/or its designated Third-Party Technology. Marchex will not be liable for any loss or damage arising directly or indirectly from Customer’s failure to maintain the security of Customer’s account access credentials including any resulting unauthorized access to Customer’s account by a third party. Customer agrees to immediately notify Marchex if Customer believes that an unauthorized third party may be using Customer’s account or otherwise if Customer’s account login credentials are compromised. Although Marchex has no obligation to monitor the Content, Conversation Data, or any other information or materials provided by Customer or through Customer’s use of the Services, Marchex may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the Agreement or could reasonably become the subject of any legal, regulatory, or other governmental proceeding or process, including any law enforcement proceeding, process, or inquiry. If Marchex incurs any fines, penalties, or similar costs from a governmental or regulatory body or telecommunications provider as a result of Customer’s use of the Services, Marchex will invoice and Customer shall pay such costs in accordance with Section 3(c) below.
- General Restrictions. Customer shall not (and will not cause any third party to), directly or indirectly: (1) reverse engineer, decompile, disassemble or otherwise attempt to discover of any source code or other operational mechanisms of any Services, its underlying software, Documentation, proprietary content or other materials provided by Marchex in connection therewith (collectively, the “Marchex Materials”); (2) modify or create derivative works based on any Services or Marchex Materials or any aspect or portion thereof; (3) copy (except for archival purposes), lease, distribute or otherwise transfer rights to any Services or any Marchex Materials including any features, designs or graphics made available as part thereof; (4) access or use any Services for the purposes of monitoring their performance or functionality for competitive purposes; (5) interfere with or disrupt the integrity or performance of the Services; (6) attempt to gain unauthorized access to the Services or its related systems or networks; or (7) use any Services in any manner or for any purpose that violates any applicable law, regulation, industry guidelines, or any right of any person, including intellectual property or rights of privacy.
- Additional Terms for Outbound Services. Customer will be responsible for: (1) implementing any consumer disclosures, consent, and/or age verification processes that may be required by applicable laws and regulations (e.g. the Telephone Consumer Protection Act, the FTC’s Telemarketing Sales Rule, etc.) with respect to any persons to be contacted using any Outbound Services and maintaining all records thereof necessary to demonstrate compliance; (2) compliance with any applicable time-of-day restrictions to contact any individuals using any Outbound Services under applicable law or regulation; and (3) all Content it uploads or approves for use in connection with any Outbound Services. Marchex will provide an opt-out feature for messages sent through Messaging Services. However, if Customer receives any opt out request(s) outside of the Messaging Services, it shall promptly remove the relevant contact information from its account and/or upload the applicable out-out information to its account in the format specified by Marchex. Marchex will not be responsible for any opt-out request(s) that Customer neglects to process as provided herein or for any delays in its processing of such opt-out request(s) in accordance herewith. Customer shall not (and will not cause any third party to), directly or indirectly: (x) use any Outbound Services to transmit any harassing, unsolicited, or unwanted messages (commercial or otherwise) or make any harassing, unsolicited, or unwanted phone calls or to engage in any form of fraudulent, misleading, or deceptive practices; or (y) transmit any Content that: (A) is obscene, offensive, threatening, defamatory, discriminatory, misleading or inaccurate; (B) constitutes “hate speech” directed at an individual or a group based upon the race, sex, creed, national origin, religious affiliation, sexual orientation, gender identity or language of such individual or group; (C) infringes or misappropriates the intellectual property of any person; (D) causes the introduction of “viruses,” “worms,” “Trojan horses,” “cancelbots,” or other similar destructive computer programming routines into any of our systems or the handsets or other devices of any consumers; or (E) with respect to Messaging Services only, constitutes or solicits personally identifiable health information under applicable law unless Customer maintains records of having provided written warning of the risk of unauthorized disclosure and obtained the individual´s written consent to communicate by text in each instance.
- Customer Clients. The terms of this subsection shall apply to the extent that Customer is an agency, search engine marketer, reseller, or other entity that intends to offer use any Services under an Order to its own advertiser or merchant clients or other customers (collectively, “Clients”). Subject to these Terms, Customers may re-allocate Services for the same limited use by its Clients consistent with the license in Section 1(a) above. Customer represents that it is each Client’s authorized agent and has express authority to bind each Client to this Agreement including the representations and warranties set forth in Section 6 below. Customer shall be responsible for all use of the CTNs and/or Services by its Clients and shall have in place with each of its Clients written contractual terms (“Client Terms”) that include: (i) representations and warranties from Client that Client is responsible for its use of all Services and its compliance with all applicable laws and regulations in its jurisdiction with respect to such Services (including, if applicable, Outbound Services and/or Recorded Call Services); (ii) disclaimers of warranties that are substantially similar to those set forth in these Terms; and (iii) a limitation of liability of Customer’s suppliers and vendors substantially similar to that set forth in Section 8 below. The Client Terms shall be consistent with this Agreement with respect to any reservation of rights and confidentiality terms between and among the parties. Customer shall be responsible for all marketing materials, advertising and informational content, and any oral or written representation that Customer or any Customer Users may make to any current or potential Clients; and Customer shall neither make nor include in the Client Terms any representations or warranties on behalf of Marchex or with respect to Marchex, its suppliers, affiliates or the Services. Upon expiration or termination of this Agreement and/or the applicable Client Terms, Customer shall: (i) cause its Clients to take all reasonable steps thereafter to remove, amend or cancel all publications, advertisements, promotions and other items bearing any CTN; and (ii) prohibit its Clients from thereafter distributing or selling any Media or other item whatsoever bearing any CTN.
- Description of Services. The Services are made available as subscription licenses according to any usage limitations and/or allowances as set forth in the Order. Subject to Customer’s payment of the applicable Fees, Marchex hereby grants to Customer a limited, revocable, non-exclusive, non-sublicenseable (except, if applicable, to Clients as provided in Section 1(e) below), non-transferable right to access and use the Services listed on the applicable Order; during the Subscription Term and in accordance with the relevant published operational documentation made available by Marchex for the applicable Services (“Documentation”) and the terms and conditions of this Agreement. The Services may include one or more of the following along with the reporting and delivery of relevant analytics data for the applicable Services in various media (collectively, the “Analytics Data”):
- PROPRIETARY RIGHTS AND GOVERNMENT MATTERS.
- Reservation of Rights. As between the parties, Marchex retains all rights, title, and interest in and to the Services and any Marchex Materials provided to Customer hereunder and all modifications, improvements, and derivatives of any of the foregoing. Other than the express licenses set forth herein, nothing in this Agreement, and nothing in any statement made in connection with this Agreement, will be deemed a license (by implication, estoppel or otherwise) under either party’s patent rights or other intellectual property rights. Both parties reserve all rights not expressly granted. Customer may choose to provide Marchex with input, suggestions, comments, ideas, concepts, know-how, or other feedback (collectively, “Feedback”) in connection with the its use of any Services made available hereunder and agrees that Marchex will be free to use such Feedback entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. Any Analytics Data collected or created by Marchex in connection with the Services during the Subscription Term and through Customer’s account, that is specific to and in a form identifiable with Customer as well as, if applicable, any Content, Conversation Data and/or Sales Data provided by Customer in connection with any Services, are the intellectual property of Customer (collectively, the “Customer Data”), subject to Marchex’s non-exclusive right to use such Customer Data in connection with the delivery of its Services and operation of its business, which may include analyzing and reporting Customer Data on an aggregated basis without identifying Customer as the source thereof and without disclosing Personal Information. For the avoidance of doubt, Marchex uses all data collected in connection with its business and operations, which may include certain aggregated Customer Data in an unidentifiable form, for (i) creation of operational statistics for internal use only; (ii) creation and inclusion in financial reporting of aggregate statistics regarding services performed; (iii) creation and inclusion in marketing materials of aggregate statistics highlighting the capabilities of the Services; and (iv) advancing and improving existing products and services, creating new and enhanced products and services, and development and publication of market and industry intelligence and expertise, all of which in such form shall be and remain the intellectual property of Marchex.
- CTNs. Customer shall not have the right to use the CTNs other than as explicitly set out in this Agreement without the prior written consent of Marchex. As between the parties, all CTNs remain the property of Marchex, pursuant to agreements with its various telephone carriers and vendors, and are made available to Customer solely for use in accordance with the terms and conditions of this Agreement and subject to applicable law and regulation. Upon expiration or termination of this Agreement, all rights of Customer to the use of the CTNs as well as the Services shall cease absolutely. Thereafter, Customer shall take all reasonable steps to remove, amend or cancel all publications, advertisements, promotions and other items bearing any CTN and shall not thereafter distribute or sell any Media or other item whatsoever bearing any CTN. The parties acknowledge and agree that Customer’s use of any CTNs may be further limited by, among other factors, changes to telephone carrier terms, changes in carrier relationships, guidelines recommended by Federal, state or local regulators, or changes to applicable law and regulation from time to time. Additionally, Marchex reserves the right to set limits on the volume of CTNs made available hereunder and makes no guarantee that local CTNs will be available for specific area codes.
- Government Matters. Customer may not remove or export from Customer’s jurisdiction or allow the export or re-export of the Services or anything related thereto in violation of any applicable export control or similar restrictions, laws or regulations. Marchex is not a telephone company. Marchex purchases telecommunications services and uses such services to provide enhanced service products to Customer. If at any time Marchex’s right to allocate CTNs or otherwise provide the Services to Customer is impaired or regulated by any governmental or quasi-governmental entity, including, the U.S. Federal Trade Commission, the U.S. Federal Communications Commission or any state public utility commission (or equivalent or similar agencies in non-U.S. jurisdictions, if applicable under the Order), Marchex shall have the right to terminate, suspend or amend this Agreement automatically upon written notice and to cause Customer to remove or withdraw any advertising material containing any CTN. Marchex shall have no liability or obligation to Customer of any kind arising out of such a termination, suspension or change in Services, as the case may be.
- PAYMENT.
- Payment of Fees. Customer agrees to pay Marchex the applicable fees and charges as specified on the Order (the “Fees”). All Fees are payable via check, electronic transfer, or by other means specified on the Order. Unless otherwise set forth in the Order, all dollar amounts referred to in this Agreement are in the lawful money of the United States of America. Customer shall be responsible for (i) all applicable taxes, levies, duties, or other similar charges imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”), if any, associated with the Services, other than Taxes based on Marchex’s net income, property, or employees; and (ii) all applicable campaign registration fees, surcharges, or similar fees associated with the Services (collectively, “Surcharges”) that are charged by communications service or telecommunication providers (e.g., carriers) or their authorized designees (e.g. The Campaign Registry), provided that if Customer provides Marchex with valid exemption information or a certificate issued by an appropriate authority, Customer will become exempt from Taxes and/or Surcharges on a going-forward basis once Marchex confirms the validity of the exemption request. If Customer’s use of the Services exceeds any applicable volume limitations set forth on the Order, Customer agrees to pay the overage Fees that apply in accordance with the Order.
- Subscription Fees. Payment obligations for Fees based on purchased subscription licenses to Services (“Subscription Fees) will be non-cancelable and Subscription Fees paid will be non-refundable except as otherwise expressly provided in this Agreement. Subscription Fees will be due and payable on the 1st payment due date specified on the Order and monthly thereafter or in accordance with any different billing frequency stated on the Order. With respect to subscriptions of a year or longer, Marchex reserves the right to change the Subscription Fees and/or to institute new fees or charges for periods following the initial Subscription Term or then-current renewal Subscription Term by providing Customer written notice at least sixty (60) days prior to applicable renewal Subscription Term (which may be sent by email).
- Usage Fees. Any Fees that apply based on usage of Services (“Usage Fees”) will be due and payable no later than thirty (30) days after the end of the month in which Services are provided. Any usage allowance metrics or Usage Fees for (i) Services based on a Per Minute calculation shall be rounded up to the nearest whole minute; and (ii) Messaging Services shall be calculated factoring in any segmentation applied by telecommunication service providers based on then-current character limits. By way of example, for as long as a limit of 160 alpha-numeric characters per transmitted message is applied in the telecommunications industry, if any given communication sent or received over an SMS-enabled CTN includes 280 alpha-numeric characters, it will be counted as two messages. Customer must notify Marchex in writing of any billing disputes with respect to Usage Fee amounts invoiced no later than ten (10) days after the end of the applicable month. In the event that Customer does not meet the business credit standards established by Marchex (which may be modified from time to time), or there is a material adverse change to Customer’s credit profile during the Subscription Term, Marchex reserves the right to adjust payment terms, such as requiring a cash deposit as security payment for the Fees.
- Credit Card Provisions. If Customer elects to pay Fees by credit card, Customer will provide Marchex with valid credit card information and hereby authorizes Marchex to charge such credit card for any Fees owed under this Agreement. Customer will provide complete and accurate billing and contact information and will promptly notify Marchex of any changes to such information. If Marchex is unable to collect Fees owed from Customer’s credit card, in addition to any additional charges, Customer shall pay Marchex an insufficient funds fee equal to five percent (5%) of the total amount due.
- Late Payments. Past due amounts will be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In the event that any payment is past due, Marchex may suspend access to all or any portion of the Services until all outstanding amounts are paid in full. Termination of this Agreement and/or payment of late payment charges shall not prejudice any other rights or remedies that may be available to Marchex.
- MUTUAL CONFIDENTIALITY.
- Definitions. For purposes of this Agreement, (i) the term “Confidential Information” shall mean all non-public technical, business, and other information of either party (“Disclosing Party”) disclosed to or obtained by the other party (“Receiving Party), in connection with this Agreement, whether prior to, on or after the date of this Agreement, that derives economic value, actual or potential, from not being generally known to others, including any technical data, designs, specifications, methods or plans of operation, know-how, techniques, drawings, processes, products, developments, inventions, improvements, product plans, research and development, business plans and financial information, rules and procedures, presentations, product functionality, customers, markets, competitive analysis, databases, formats, formulas, algorithms, or information related to engineering, marketing, or finance; and (ii) the term “Personal Information” shall mean information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with any natural person, household, or device and that is collected, received, stored, processed, or otherwise used by Marchex in providing the Services to Customer under an Order. For the avoidance of doubt, all Documentation, the pricing and other terms of the Order, these Terms, and any Beta Services made available to Customer hereunder shall be deemed to be Marchex’s Confidential Information and the Customer Data shall be deemed to be Customer’s Confidential Information. Without limiting any other provision of this Agreement, each party shall retain all right, title and interest in and to its Confidential Information, including all intellectual property rights inherent therein or appurtenant thereto.
- Exceptions. The restrictions contained in this Section 4 shall not apply to any information that the Receiving Party can reasonably document: (i) was publicly available or otherwise known to the Receiving Party at the time of disclosure, (ii) subsequently becomes publicly available through no act or omission by the Receiving Party or any of its employees, agents or contractors; (iii) was in its possession or known by it prior to receipt from the Disclosing Party; (iv) subsequently becomes otherwise known to the Receiving Party other than through disclosure by the Disclosing Party; or (v) is or has been independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party in violation of this Agreement. If either party becomes legally compelled to disclose any Confidential Information of the other Party (whether by judicial or administrative order, applicable law, rule or regulation including securities exchange requirements, receipt of a criminal or civil subpoena, or written request from governmental authorities requesting information in connection with a criminal proceeding or otherwise), that party shall use all reasonable efforts to provide the other party with prior notice thereof (to the extent legally permitted) so that the other party may seek a protective order or other appropriate remedy to prevent such disclosure. If such protective order or other remedy is not obtained prior to the time such disclosure is required, the Receiving Party will only disclose that portion of such Confidential Information which it is legally required to disclose.
- Protection of Confidential Information. Each party shall hold all Confidential Information of the other party in strict confidence and shall not disclose any Confidential Information to any third party. The parties may disclose the Confidential Information of the other party only to its respective employees, contractors, and agents who need to know such information for the purposes of performing their respective obligations under this Agreement and who are bound in writing by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Each party shall use the same degree of care that it uses to protect its own confidential and proprietary information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information of the other party. The Receiving Party shall not use the other party’s Confidential Information for any purpose except as expressly permitted herein or otherwise required to fulfill the party’s obligations under this Agreement. Each Party shall be directly responsible for any unauthorized use or disclosure of the other party’s Confidential Information by its employees, agents or contractors. For the avoidance of doubt, the parties acknowledge and agree that Confidential Information may include Personal Information, including call-related, caller related and call-receiver related Personal Information that may be included in the Data processed under this Agreement and that each of the parties shall treat such Confidential Information in accordance with the terms of this Section, in addition to, and without limiting, the requirements that each of the parties has with respect to the Data generally under this Agreement and applicable laws rules, regulations, and industry standards.
- CUSTOMER DATA.
- Security. During the Subscription Term, Marchex will implement and maintain an information security program that includes administrative, technical, and physical safeguards that are commensurate to the nature and sensitivity of the relevant information assets and designed to prevent unauthorized access, use or disclosure of any Customer Data stored and/or processed by Marchex pursuant to this Agreement.
- Privacy. To the extent applicable, each party agrees to comply with all state and federal laws that relate to the protection of privacy and Personal Information and/or provide individuals with certain rights with respect to their Personal Information such as the California Consumer Protection Act (California Civil Code §§ 1798.100, et seq., as amended by the California Privacy Rights Act of 2020), the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Utah Consumer Privacy Act, the Connecticut Data Privacy Act, and their respective implementing regulations and guidance, as may be amended or supplemented (collectively, the “Data Privacy Laws”). To the extent relevant to the Services provided under this Agreement and any applicable Data Privacy Laws, Customer will be deemed to be the “business” or “controller” and Marchex shall be deemed to be the “service provider” or “processor” to Customer under the Data Privacy Laws, as applicable. The nature and purpose of Marchex’s processing of Personal Information under these Terms is the provision of the specific Services listed in the applicable Order to Customer (the “Business Purpose”). The processing of the Personal Information shall continue for the duration of the Subscription Term subject to Section 5(c) below. Marchex will: (1) limit the collection of any Personal Information to only what is necessary for the Business Purpose; (2) not “sell” or “share” (as such terms are defined under applicable Data Privacy Laws) such Personal Information; and (3) not retain, use, or disclose such Personal Information for a commercial purpose other than providing the Services to Customer or any purpose other than: (i) the Business Purpose; (ii) in accordance with Customer’s written instructions; or (iii) as otherwise permitted by the applicable Data Privacy Laws. Marchex will cooperate with Customer in responding to and complying with consumer requests made pursuant to any applicable Data Privacy Laws and, if applicable, requiring Marchex’s sub-processors, if any, to do the same with respect to any Personal Information in their custody or control unless Marchex determines in good faith that such processing is impossible or involves disproportionate effort, in which case, Marchex will provide Customer with a reasonably detailed explanation of its determination. To the extent required by any applicable Data Privacy Laws, once per year during the Subscription Term and upon reasonable advance notice from Customer, Marchex will provide to Customer with any information reasonably necessary to demonstrate Marchex’s compliance with its obligations under this Section. Marchex shall notify Customer if it determines that it can no longer meet its obligations under any applicable Data Privacy Laws. In such event, Customer shall have the right, upon notice to Marchex, to take any reasonable and appropriate steps to stop and remediate any unauthorized processing of Personal Information by Marchex.
- Storage and Deletion. All archived Customer Data shall be governed by the then-effective Marchex storage and deletion protocols for data, including maximum storage periods and automatic and mandatory deletion protocols. Notwithstanding the foregoing, unless otherwise limited or restricted by applicable law or regulation, Marchex may, but shall not be obligated to, maintain archived Customer Data following termination of the Agreement. Furthermore, in the event that Marchex in its reasonable professional discretion determines that such Customer Data may not be deleted due to any outstanding compliance or regulatory matters, Marchex reserves the right to maintain such storage until the matter has been resolved to its satisfaction. Notwithstanding anything to the contrary herein, Marchex may disclose Customer Data to law enforcement or other governmental authorities upon receipt of request therefrom or in connection with any and all exigent circumstances involving individual or public health, rescue or safety, without incurring any liability for such action. Customer acknowledges that Marchex may change its practices and limitations concerning storage of Customer Data from time to time and that notification of any such changes will be posted on Marchex’s website or within Customer’s administration panel, or sent by email. Customer shall download and maintain a backup of any information or data that Customer requires to be subject to its own storage protocols, subject to the terms hereof.
- REPRESENTATIONS AND WARRANTIES.
- Authority and Obligations of the Parties. Each party represents and warrants that: (i) it has full power and authority to enter into this Agreement; (ii) as of the Effective Date and at all times throughout the Subscription Term, it has all consents, approvals, licenses and permissions, necessary for such party to perform all of its obligations and for the other party to exercise all of its rights in each case in accordance with the terms hereof; (iii) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms; and (iv) its obligations and performance under this Agreement will not violate any applicable law or regulation or breach any other agreement to which such party is bound.
- Services Warranties by Marchex. Marchex represents and warrants during the Subscription Term that the Services subscribed to by Customer will substantially operate in accordance with the applicable portions of the Documentation in all material respects. Any claim or allegation that Services do not comply with the foregoing representation and warranty must be made during the sixty (60) day period following the provision of the applicable Services. No such claim or allegation may be made after the expiration of such period. The foregoing warranty in the first sentence of this subsection will not apply: (i) if the applicable Services are not used by Customer or any Customer User in accordance with this Agreement, the applicable Documentation, or applicable law or regulation; (ii) to any Beta Services or other services provided on a free and/or trial basis; (iii) to any interoperability issues arising from any Third-Party Technology used by Customer in connection with the Services or from Customer’s own systems; or (iv) if the Services have been modified or combined with any third-party products or services, in each case in a manner that was not authorized in advance in writing by Marchex. Customer’s exclusive remedy for any breach of the foregoing warranty shall be re-performance of the applicable Services at no additional cost to Customer or termination of the Agreement in accordance with Section 10(b) below provided that Marchex will have up to sixty (60) days from Customer’s initial notice of the alleged non-conformity to correct it without materially decreasing the overall functionality of the Services. Professional Services provided by Marchex under this Agreement will be performed in a professional and workmanlike manner in accordance with the applicable industry standards.
- Additional Warranties by Customer. Customer represents and warrants during the Subscription Term that: (i) it shall use the Services (and any Analytics Data acquired in connection therewith) in full compliance with all applicable laws and regulations and rules of any governmental or regulatory body, and including those relating to advertising, privacy, marketing and telephone solicitation (for the avoidance of doubt, this shall include federal “Do-Not-Call” rules); (ii) it has all necessary rights, title, and interests necessary to provide any and all Content that it elects to upload for use with any Outbound Services or otherwise provide to Marchex hereunder and Customer’s provision thereof shall not infringe the rights of any third party, including intellectual property rights; and (iii) it shall obtain and maintain the full right and authority (including by way of any consents or appropriate advance notifications as may be required under applicable law) for (1) any monitoring of calls that may be enabled as part of the Services; (2) the transfer of Conversation Data and/or any other Personal Information to Marchex as contemplated hereunder; and (3) any other collection, use, transfer, disclosure or other processing by Marchex of such information for the purposes contemplated under this Agreement.
- Use of Information. To the extent required by applicable law and regulation for certain regulated financial and other entities in their use of consumer data, Customer represents and warrants that all consumer information received from Marchex will be used only for marketing or internal business purposes such as customer service or quality assurance. By way of example and not limitation, consumer information will not be used, in whole or in part, for purposes of establishing a consumer’s eligibility for credit or insurance or for employment purposes.
- DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND MARCHEX, ITS SUPPLIERS, AND VENDORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE AS WELL AS IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MARCHEX MAKES NO WARRANTIES AS TO AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, INTEROPERABILITY OR COMPLETENESS OF ANY DATA THAT MAY BE PROVIDED TO OR OTHERWISE OBTAINED BY CUSTOMER IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER INCLUDING THIRD-PARTY DATA AND CONSUMER DATA. IN ADDITION, MARCHEX DISCLAIMS ANY AND ALL GUARANTEES WITH RESPECT TO ANY RESULTS THAT MAY BE OBTAINED FROM USE OF ANY SERVICES OR REGARDING THE TIMING OR SUCCESS OF DELIVERY OF ANY CONTENT OR MESSAGES THROUGH ANY OUTBOUND SERVICES.
- LIMITATION OF LIABILITY. NEITHER MARCHEX, ITS SUPPLIERS, AND VENDORS, ON THE ONE HAND, NOR CUSTOMER, ON THE OTHER HAND, SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY: (A) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF DATA OR BUSINESS INTERRUPTION; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE (COLLECTIVELY, “INDIRECT DAMAGES EXCLUSION”); (C) FOR ANY MATTER BEYOND SUCH PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO MARCHEX FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY (THE “LIABILITY CAP”). THE INDIRECT DAMAGES EXCLUSION AND THE LIABILITY CAP SHALL NOT APPLY TO: (I) ANY BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY); (II) CUSTOMER’S BREACH OF SECTION 1(d) HEREOF; AND (III) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9. IN ADDITION, CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3 WILL NOT BE LIMITED BY THE LIABILITY CAP. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT IN LIGHT OF THE FEES CHARGED HEREUNDER, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MARCHEX WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, AND THAT EACH PARTY HAS RELIED ON AND WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
- INDEMNIFICATION.
- Indemnification by Marchex. Marchex, at its own expense, shall indemnify, defend and hold harmless Customer and its affiliates, employees, representatives and agents (collectively, the “Customer Indemnified Parties”) from and against any claim, demand, action, investigation or other proceeding, including all damages, losses, liabilities, judgments, fines, penalties, costs and expenses arising therefrom, brought by any third party (collectively, a “Claim”) against any Customer Indemnified Parties to the extent that the Claim is based on, or arises out of an allegation that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s United States patent, copyright, trademark or trade secret; provided, however, that Marchex will have no liability for any Claim that arises out of (i) use of the Services in combination with third-party software, hardware, network, system, data, products, processes, or other materials not provided by Marchex and the infringement would not have occurred but for such combination; (ii) where the alleged infringement arises from or relates to modifications to the Services not made or authorized by Marchex, or modifications to the Services developed pursuant to Customer’s instructions; or (iii) to the extent the liability arises from Customer’s continuance of the activity or use allegedly contributing to the infringement after notification thereof by Marchex. In the event that the Services or any portion thereof, are held, or in Marchex’s reasonable, good faith judgment are likely to be held, to infringe the intellectual property rights of any third party, Marchex may, at its option, either: (A) procure for Customer the right to continue the use of such infringing item; (B) replace such item with a substantially similar non-infringing item or modify such item (without materially affecting the functions or features of such item) so that it is no longer infringing or reduces the likelihood that it will be determined to be infringing; or (C) to the extent that Marchex determines that neither of the foregoing is feasible, terminate this Agreement and refund Customer any prepaid and unused Fees prorated to cover the period from the date Customer was unable to use the Services due to such infringement Claim through the end of then-current Subscription Term. This Section 9(a) constitutes Customer’s sole and exclusive remedy with respect to any infringement by the Services of any third-party intellectual property rights.
- Indemnification by Customer.Customer at its own expense, shall indemnify, defend and hold harmless Marchex, its affiliates, suppliers, as well as their respective employees, representatives and agents (collectively, the “Marchex Indemnified Parties”) from and against any Claim against any Marchex Indemnified Parties that arises from or in connection with: (i) Customer’s use of the Services including use in violation of any applicable restrictions or requirements hereunder such as those in Section 1(d) and its use or disclosure of any information obtained through the Services; and (ii) the Media and Customer’s telemarketing or other marketing activities related to this Agreement.
- TERM AND TERMINATION.
- Subscription Term. Subject to earlier termination as provided below, the initial effective term of this Agreement (the “Subscription Term”) shall first be for the period specified in the applicable Order. Upon expiration, unless otherwise set forth on the Order, the Subscription Term shall be automatically renewed for additional periods of the same duration, unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term.
- Termination for Cause. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ prior written notice, if the other party materially breaches any of the terms or conditions of this Agreement, and such breach remains uncured at the end of such thirty (30) day period. Notwithstanding the foregoing, in the event that Customer either (i) violates any of the restrictions in Section 1(d) of these Terms; or (ii) makes an assignment for the benefit of creditors, has any petition under bankruptcy law filed against it; or has a trustee or receiver appointed for its business or assets or any part thereof, Marchex may immediately suspend access to the Services hereunder or terminate this Agreement.
- Effect of Termination.Customer will pay in full any applicable Usage Fees up to and including the last day on which the Services are provided. If this Agreement is terminated by Marchex under Section 10(b), Customer will be obligated to pay any unpaid Subscription Fees for the then-current Subscription Term. Subject to the foregoing, upon termination hereof, Customer’s license under Section 1(a) will terminate and at the request of the other party, each party shall return to the other party or destroy, and certify in writing as to such destruction, the other party’s Confidential Information. Upon any termination, unless otherwise limited or restricted by applicable law or regulation, Marchex may maintain archived Customer Data for at least thirty (30) days following termination of the Agreement, and, upon written request by Customer, will deliver such archived Customer Data to Customer in a mutually agreed upon format (at Customer’s expense). All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification, and limitations of liability.
- MISCELLANEOUS. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If any provision of the Order conflicts with any provision of these Terms, the provision of the Order shall prevail to the extent of the conflict. Other than with respect to specific Services itemized on an Order, the word “include” or any variants thereof used herein shall be construed non-exclusively to mean “including without limitation.” Any section headings contained herein are for reference purposes only and do not in any way affect the meaning or interpretation of this Agreement. This Agreement is governed by Washington state law without regard to its conflict of laws rules. Customer and agent (if applicable) irrevocably submit to venue and personal jurisdiction in the federal and state courts in King County, Washington for any dispute arising out of or related to this Agreement, and waive all objections to jurisdiction or venue of such courts and agree not to commence nor prosecute any such dispute other than in such courts. Each party waives any right to a jury trial involving any claims, causes of action (including counterclaims) or disputes between the parties. The prevailing party is entitled to recover its costs, including reasonable attorneys’ fees, in any action or suit to enforce any right or remedy under this Agreement, or to interpret any provision of this Agreement. Customer shall not assign or otherwise dispose of this Agreement without Marchex’s prior written consent. This Agreement binds and inures to the benefit of the parties’ successors and lawful assigns. Any notice required or permitted by this Agreement shall be made in writing and will be deemed given as of the day the notice is received either by messenger, delivery service or certified mail, postage prepaid or sent (if via email) and such notice must be addressed (i) if to Marchex, to Marchex c/o Marchex, Inc., Attn: Legal Dep’t, 1200 5th Street, Suite 1300, Seattle, WA 98101; (ii) if to Customer, to Customer at the email address stipulated on the corresponding Order. No waiver of a breach of any provision hereof shall be deemed a waiver of any succeeding breach of such provision. Customer may not make any public announcement relating to the relationship established by this Agreement without the prior written consent of Marchex. Marchex and/or its parent company may make public announcements regarding the relationship established by this Agreement, which may include limited use of Customer marks or logos. Except for payment obligations, neither party is liable for any failure or delay resulting from a condition beyond the reasonable control of the party, including acts of God, government, terrorism, natural disasters, labor conditions, power failures, third-party connection or utilities outages, Internet disruption or latency, interruption or failure of ISP and carrier lines. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the Services specified in the corresponding Order, superseding and replacing any other agreements, or terms and conditions applicable to such Services. However, Customer may enter into other agreements with Marchex relating to other services, which shall be governed by such other agreements. Customer has not relied upon any statements or promises in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g., an Order’s reference to other terms and conditions) are void. Marchex may modify these Terms and/or any terms incorporated herein by reference by posting a revised version to its website. Customer’s continued participation in the Services following such changes signifies Customer’s acceptance of such modifications.
Effective September 29, 2023