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AdApproach Search Engine Marketing Services Terms of Use Agreement

This AdApproach Search Engine Marketing Services Terms of Use Agreement, (the "Agreement") is entered into by you ("you" or "Advertiser") and Xacti Corporation ("AdApproach"), owner of the AdApproach Search Engine Marketing Services described in this Agreement ("Services"), for the purpose of your purchasing the Services.

Introduction, Services. AdApproach will provide the following services, with respect to Advertiser's URL specified by you in conjunction with your signing up for these services (collectively, "Services"): manage existing "pay per click" or "paid placement" ("PPC") accounts, and/or create, optimize, and manage new PPC campaigns.
Total Fees, Service Fees. As a condition to AdApproach providing the Services, Advertiser hereby designates AdApproach its agent to submit Advertiser’s Content (defined below) to general search engines and other Internet publishers, as determined by AdApproach in its sole discretion, for PPC advertising and to bind Advertiser to any agreements and terms and conditions required by such general search engines and other internet publishers. Advertiser agrees to pay AdApproach monthly an amount which is no greater than the maximum budget amount selected by you in conjunction with your signing up for the Services, which is the maximum amount you will pay per month (“Budget”). Subject to the Budget amount, you agree to pay AdApproach all fees and costs incurred by AdApproach in connection with our Services (“Total Fees”), including fees and costs paid to third parties and our fees and costs (“Service Fees”). You may change the Budget in accordance with procedures established by AdApproach from time to time. Advertiser acknowledges and agrees that it will pay AdApproach Total Fees for every month during the Term (defined below), even if Service Fees for a month equal zero. In the event of non-payment by Advertiser, the individual who is signing up on behalf of the Advertiser may be held personally liable for Total Fees, Service Fees and other costs incurred, as well as losses related to fraudulent use of a credit/debit card and costs associated with a chargeback.
Payment. AdApproach will bill Advertiser monthly in advance for the Total Fees incurred during the next month, and shall collect such amounts from the credit card on file for you. AdApproach may require or allow, but has no obligation to other billing arrangements and/or payment methods in its sole discretion.
Domain Registration. As an authorized Tucows Reseller, AdApproach can provide certain services related to the registration of Domain names as part of the Services. By signing up for AdApproach services, Advertiser agrees to abide by the Tucows Registration Agreement and ICANN Policy.
Advertiser Representations and Warranties; License and Grant of Rights.
Advertiser agrees to abide by the terms and conditions to which AdApproach submits the Content pursuant to this Agreement. Any Customer violation of any such terms and conditions or other guidelines or requirements will be considered a material breach of this Agreement. Advertiser represents and warrants that: (i) it has and will continue to have the absolute and unrestricted right to publish and use (including use as searchable text or “keywords”) all words, phrases, logos, brands, products, service, affiliations, certifications, and all other content used by Advertiser in its online advertising, including all such content submitted to AdApproach in conjunction with the Services (“PPC Material”) and in the Advertiser Websites (as hereinafter defined) (collectively, the “Content”); (ii) the Content does not infringe the intellectual property, proprietary, publicity, privacy, or other rights of any third party; (iii) the Content and all products and services referenced therein comply with all applicable laws and regulations and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage, or harm of any kind to any person or entity; (iv) Advertiser is fully authorized to publish the Content; (v) the Content is and will remain accurate and is not misleading, defamatory, libelous, slanderous, or threatening and does not advertise illegal activity or constitute illegal or fraudulent business practices in jurisdictions where it is displayed; (vi) Advertiser possesses documentation substantiating all claims, express and implied, made in the Content, (vii) the Advertiser Websites will at all times be operated by or on behalf of Advertiser, use secure technology to protect the data of users accessing such website(s) from a link in the PPC Material and not implement or use technology that prevents users from using the browser “Back” button; (viii) the Advertiser Websites will look substantially the same to all users unless the Content of the Advertiser Websites is relevant to the user’s selected keywords or other search criteria; and (ix) the Advertiser Websites will be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may damage, interfere with, intercept or expropriate any system data or personal information. Any Advertiser breach of this warranty will be considered a material breach of this Agreement. An advertising copy and other information submitted or selected by Advertiser in connection with the Services will be included within the terms “Content” for purpose of the rights, licenses and authority granted by Advertiser. “Advertiser Websites” means all websites to which the PPC Material links. Advertiser acknowledges and agrees that the general search engines and other internet publishers to which the Content is submitted by AdApproach or by Advertiser will have non-exclusive, royalty-free, worldwide right and license to reproduce, publicly perform, display, distribute, reformat, resize, edit, cache, index, and transmit the Content and develop operate links on the general search engine and other internet publisher websites solely for the purpose of providing services to Advertiser and that such search engines and other online publishers may distribute the Content throughout their networks of participating websites and other distribution outlets.
Term Length, Indemnification. This Agreement will be effective in one-month terms, and shall automatically renew monthly unless notice is received to terminate the Agreement at the completion of the then-current monthly term. Advertiser may cancel this Agreement within 3 days from date hereof by giving AdApproach written notice within such 3 days.
You agree to indemnify AdApproach and its subsidiaries and affiliates, and their officers, directors, employees and agents, representatives, information providers and licensors and to hold them harmless from and against any and all liability, losses, claims, demands, disputes, damages or costs of any kind arising, directly or indirectly, from the Services.
DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADAPPROACH DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS OF A PARTICULAR PURPOSE, WITH REGARD TO THE SERVICES. ADVERTISER ACKNOWLEDGES AND AGREES THAT ADAPPROACH, AND ANY AFFILIATE, AGENT, EMPLOYEE, OFFICER, DIRECTOR, REPRSENTATIVE, MAKES NO SPECIFIC GUARANTEE OR WARRANTY REGARDING THE SERVICES, THE GENERAL SEARCH OR OTHER INTERNET PUBLISHERS TO WHICH ADAPPROACH SUBMITS THE PPC MATERIAL, INCLUDING WITHOUT LIMITATION PLACEMENT OF THE PPC MATERIAL OR OF ANY SPECIFIC RESULTS RELATING THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADAPPROACH DOES NOT WARRANT THE NUMBER OF CALLS, CLICKS, OR IMPRESSIONS ON ADVERTISER’S WEBSITE OR THE PPC MATERIAL OR THAT ADVERTISER’S PPC MATERIAL WILL APPEAR IN RESPONSE TO A PARTICULAR QUERY. ADAPPROACH DOES NOT WARRANT THAT THE PERFORMANCE OF THE SERVICES WILL BE ERROR FREE.

LIMITATION OF LIABILITY. THE MAXIMUM AGGREGATE LIABILITY THAT ADAPPROACH MAY HAVE TO ADVERTISER UNDER THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT OF SERVICE FEES PAYMENTS MADE UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT ALLEGING LIABILITY. ADAPPROACH WILL HAVE NO LIABILITY IN CONNECTION WITH THE FUNCTIONALITY OR CONTENT OF ANY GENERAL SEARCH ENGINE OR OTHER INTERNET PUBLISHER PROGRAM OR WEBSITE NOT OWNED BY ADAPPROACH.
Miscellaneous. Advertiser has not relied on any representations or warranties not contained in this Agreement. This Agreement supersedes all prior and contemporaneous agreements regarding the subject matter hereof and represents the parties’ entire agreement regarding the Services. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of laws, and you hereby consent to the exclusive personal jurisdiction and venue of state and federal courts located in Palm Beach County, Florida or Richmond, Virginia, in AdApproach’s sole discretion, for all disputes arising out of this Agreement. If legal action is necessary for AdApproach to enforce this Agreement, AdApproach shall be entitled to reasonable attorneys' fees, costs and expenses in addition to any other relief to which it may be entitled. If any provisions of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions. All provisions of this Agreement relating to ownership of intellectual property and proprietary rights, warranty disclaimers, limitation of liability, and indemnification shall survive the termination of your use or access to the Service, for whatever reason.
Authority. The person selecting the "I have read and agree to the Terms of Use and Privacy Policy" and clicking the "Continue" button or signing the hardcopy version of this Agreement on behalf of the Advertiser or otherwise authorizing the purchase of the Services hereby certifies that he or she is either the Advertiser or has been lawfully authorized to sign this Agreement and authorize the purchase of the Services.