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Hero Ads Terms and Conditions

Last Updated: Dec 11, 2013 04:38PM PST
ADVERTISING TERMS AND CONDITIONS
These Advertising Terms and Conditions (the “Terms”) are entered into by and between MerchantCircle, Inc., a Delaware corporation (“MerchantCircle”) and you (hereinafter, “You” or “Your”). These Terms in connection with the MerchantCircle Terms of Service (found here: http://www.merchantcircle.com/corporate/tos.html) and the Advertising Purchasing Order represent the agreement between the parties (“Agreement”) and govern the terms of Client’s participation in MerchantCircle’s advertising program on the MerchantCircle’s websites, mobile applications, and other properties (the “Site”). The Terms are effective as of the date that You agree and electronically submit Your consent to MerchantCircle (“Effective Date”), and that as the signer of this Agreement, You represent that you are authorized to sign on behalf of and bind the organization identified below (the “Client”) to the obligations under the Agreement.
 
 
  1. Advertising Account
    MerchantCircle will establish an advertising account enabling Client to purchase custom ad blocks (“MerchantCircle Ads”) that MerchantCircle will make available to Client from time to time in connection with MerchantCircle’s websites, mobile applications, and other properties (collectively, the “Site”) to display MerchantCircle Ads on portal pages for geography and category/geography combinations (“Hub Pages”). Each purchase will be set forth in an applicable purchase order agreed to by the parties which sets forth the MerchantCircle Ads being purchased, the applicable tier being purchased, applicable fees, the duration of the advertising commitment (the “Commitment Period”) (all together, the “Purchase Order”). .Each Purchase Order is governed by and incorporated into these Terms, and any conflict between them will be resolved in favor of the Purchase Order.
  2. MerchantCircle Ads
    The MerchantCircle Ads shall appear on Hub Pages for each city, state combination and each city/category combination selected in the Purchase Order. There shall be 4 (four) ad blocks available for each city, state combination and each city/category combination. MerchantCircle will maintain Hub Pages for Cities and Categories, but does not guarantee impression volume or interruption of the service.
  3. Fees and Payment
    Client will pay MerchantCircle according to the fees set forth in the Purchase Order. All fees are solely based on MerchantCircle’s measurement for the applicable MerchantCircle Ad, including the measurement of all clicks and ad impressions, unless otherwise agreed to in writing by the parties. The fees are fixed for the duration of the Commitment Period, but may be modified by MerchantCircle thereafter by providing one month’s prior written notice to Client. The fees are net of any taxes Client may be required to pay in its taxing jurisdiction. All payments are due via a credit card in advance of the period for which they apply.  ACCORDINGLY, CLIENT AUTHORIZES MERCHANTCIRCLE TO USE SUCH CREDIT CARD INFORMATION TO AUTOMATICALLY CHARGE CLIENT ON A RECURRING BASIS TO COLLECT ALL FEES DUE HEREUNDER. CLIENT REPRESENTS THAT HE OR SHE IS AUTHORIZED TO INCUR CHARGES AGAINST THE PAYMENT CARD USED TO PURCHASE MERCHANTCIRCLE ADS. THE FORM OF PAYMENT CANNOT BE CHANGED OR ALTERED UNLESS ALL AMOUNTS DUE UNDER THE TERMS HAVE BEEN PAID IN FULL OR OTHERWISE AGREED TO BY THE PARTIES IN WRITING. Ten (10) days before the occurrence of a renewal period, MerchantCircle will (and Client hereby authorizes) charge the payment information on file. Should Client’s payment method fail, MerchantCircle will attempt to charge the card daily up to Client’s renewal date. Should payment fail to be received by the renewal date, Client’s Ad Placement will be terminated and Client may forfeit placement for future Ad Placements. Furthermore, unpaid amounts or errors may be billed in subsequent invoices. Notwithstanding the above, if Client’s account is past due, MerchantCircle may collect past due amounts using other collection mechanisms, and Client agrees to pay all expenses associated with such collection, including reasonable attorneys’ fees.
  4. Representations and Warranties
    1. Each party represents and warrants to the other that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized; all contact and entity information is complete, correct and current, and the execution and delivery of the Terms, and the performance of the transactions contemplated hereby, are within its corporate powers, and have been duly authorized by all necessary corporate action.
    2. Client represents and warrants to MerchantCircle that any information or materials that Client provides in connection with MerchantCircle Ads (“Advertising Materials”) will (a) be true and complete, (b) not contain any material which violates MerchantCircle’s content guidelines (as provided from time to time) or which is otherwise unlawful, defamatory or obscene, or which infringes or violates any third-party rights (including any intellectual property rights or privacy or publicity rights) or which may encourage a criminal offense or otherwise give rise to civil liability and (c) comply with all applicable laws and regulations in its performance of the Terms (including all applicable privacy/data protection laws and regulations and laws related to Promotions). “Promotions” are any contest, sweepstakes, coupon or other promotion appearing on or promoted through the Site by Client. MerchantCircle reserves the right to reject or remove any Advertising Materials at its sole discretion, and to alter any Advertising Materials to conform to technical specifications.
    3. Client further represents and warrants to MerchantCircle that Client will not, and will not authorize or induce any other party, to: (x) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions; (y) use any automated means or form of scraping or data extraction to access, query or otherwise collect MerchantCircle content and reviews from the Site, except as expressly permitted by MerchantCircle or (z) use any MerchantCircle trademarks in any manner without MerchantCircle’s prior written consent. All rights not expressly granted to Client hereunder are reserved by MerchantCircle.
  5. Use of the Site
    MerchantCircle disclaims all liability arising from MerchantCircle’s access to Client’s account on Client’s behalf in order to make changes or post information to the Site (“Client Instructions”). It is Client’s responsibility to confirm that Client Instructions are executed as requested. Client’s use of the Site, including any use by someone else acting on Client’s instructions, is governed by the Terms of Service posted here: http://www.merchantcircle.com/corporate/tos.html (“TOS”). Any conflicts between these Terms and the TOS will be resolved in favor of the TOS.
  6. Termination
    1. Each Purchase Order will expire at the end of the Commitment Period unless (i) otherwise terminated earlier under these Terms or (ii) the Purchase Order contains a renewal period that automatically extends the term of the Purchase Order beyond the Commitment Period (collectively the “PO Term”). Client must provide written notice (an email to Client’s assigned MerchantCircle account representative is permissible) to terminate a Purchase Order on or before fifteen (15) days from the Client’s renewal period. If Client fails to provide written notice according to the preceding sentence, then, unless there is an automatic renewal, the Purchase Order will terminate at the end of the following Commitment Period. Unless otherwise terminated as provided under the Terms, the Terms will automatically expire three (3) months after the termination or expiration of the last surviving Purchase Order.
      IF CLIENT TERMINATES A PURCHASE ORDER BEFORE THE END OF THE COMMITMENT PERIOD, CLIENT AGREES TO PAY ANY AND ALL EARLY TERMINATION FEES SET FORTH IN THE PURCHASE ORDER(S), RECOGNIZING THAT MERCHANTCIRCLE BEARS CERTAIN UP-FRONT COSTS, AND THAT THERE IS AN IMPLIED PRICING DISCOUNT BASED ON THE LENGTH OF CLIENT’S CHOSEN COMMITMENT PERIOD.
    2. MerchantCircle may terminate any Purchase Order or the Terms at any time for any or no reason without liability, effective immediately, by providing written notice to Client. In the event of such termination, Client will immediately pay all unpaid MerchantCircle Ad fees through the date of termination, and MerchantCircle will reimburse any fees that were prepaid for MerchantCircle Ads to be rendered after the date of such termination.
  7. MERCHANTCIRCLE’S DISCLAIMER OF WARRANTIES
    CLIENT ACKNOWLEDGES AND AGREES THAT MERCHANTCIRCLE ADS ARE PROVIDED TO CLIENT ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. MERCHANTCIRCLE MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE MERCHANTCIRCLE ADS AND EXPRESSLY DISCLAIMS THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. FURTHERMORE, TO THE FULLEST EXTENT PERMITTED BY LAW, MERCHANTCIRCLE SPECIFICALLY DISCLAIMS ALL WARRANTIES AND GUARANTEES REGARDING (I) THE PERFORMANCE, QUALITY AND RESULTS FOR THE SERVICE, (II) CLICK RATES, CONVERSIONS OR OTHER PERFORMANCE OR RESULTS FOR THE SERVICE, (III) THE ACCURACY OF THE INFORMATION THAT MERCHANTCIRCLE PROVIDES IN CONNECTION WITH THE SITE OR MERCHANTCIRCLE ADS (E.G. REACH, SIZE OF AUDIENCE, DEMOGRAPHICS OR OTHER PURPORTED CHARACTERISTICS OF AUDIENCE), (IV) MERCHANTCIRCLE’S ABILITY TO TARGET ADS TO OR IN CONNECTION WITH SPECIFIC USERS, TYPES OF USERS, USER QUERIES, OR OTHER USER BEHAVIORS, (V) THE ADJACENCY OR PLACEMENT LOCATION OF MERCHANTCIRCLE ADS, AND (VI) AN AD IMPRESSION’S QUALITY, TIMING OR THE NUMBER OF AD IMPRESSIONS DELIVERED. MERCHANTCIRCLE SHALL NOT BE LIABLE FOR NON-PERFORMANCE DUE TO CAUSES BEYOND ITS REASONABLE CONTROL.
  8. LIMITATIONS OF LIABILITY
    MERCHANTCIRCLE’S MAXIMUM LIABILITY AND CLIENT’S EXCLUSIVE REMEDY IS THE AGGREGATE FEES PAYABLE TO MERCHANTCIRCLE HEREUNDER DURING THE SPECIFIED COMMITMENT PERIOD EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
    NEITHER PARTY NOR ITS AFFILIATES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS OR REVENUE, OR INTERRUPTION OF BUSINESS) ARISING OUT OF OR RELATED TO A PURCHASE ORDER, THE MERCHANTCIRCLE ADS, THE SITE, OR THESE TERMS, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  9. Indemnification
    Client will indemnify, defend, and hold MerchantCircle and its officers, directors, agents, and employees harmless from and against any and all claims, actions, losses, damages, liabilities, costs and expenses (including but not limited to attorneys’ fees and court costs) (collectively a “Third Party Claim”) arising out of or in connection with (i) the Advertising Materials, Client Instructions, or Client’s use of MerchantCircle Ads, (ii) any breach of representations or warranties provided under these Terms by Client in Section IV, (iii) any Promotion, including any claims for any violation by the Promotion of any applicable law, rule or regulation, (iv) Client’s products or services or the provision thereof to end users or (v) if applicable, failure to obtain the consent from all parties to recorded or autodialed phone calls originating from the Tracking Numbers if you have enrolled in the Pay-Per-Call Program. MerchantCircle will notify Client promptly of any Third Party Claim for which it seeks indemnification and will permit Client to control the defense of such Third Party Claim with counsel chosen by Client; provided, that Client will not enter into any settlement that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of MerchantCircle without MerchantCircle’s prior written consent.
  10. Choice of Law and Arbitration
    1. Any claim, controversy or dispute arising out of or relating to the Terms (“Claim”) will be exclusively governed by California law consistent with the Federal Arbitration Act without regard to conflict of law provisions or giving effect to any principles that may provide for the application of the laws of another jurisdiction.
    2. All Claims must be exclusively and finally resolved and settled by final and binding arbitration administered by and in accordance with the rules of the American Arbitration Association (“AAA”) before a single arbitrator who is a member of the AAA. Arbitrations will be held in San Francisco, California, but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitrator will issue a ruling in writing, and will detail all findings of fact and law upon which the ruling was made. The arbitrator will not have the power to commit errors of law or legal reasoning, and the ruling may be vacated or corrected on appeal to a court of competent jurisdiction for such errors. The arbitrator’s ruling will otherwise be final and binding on all parties, and may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, any dispute as to the enforceability of this arbitration provision or its applicability to a specific Claim shall be adjudicated by a state or federal court located within San Francisco County, California (“Court”), and not by an arbitrator.
    3. THE TERMS MUST BE CONSTRUED AS IF THEY WERE JOINTLY WRITTEN BY BOTH PARTIES. CLIENT AND MERCHANTCIRCLE AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH CLIENT AND MERCHANTCIRCLE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SUBSECTION (C), AND THIS SUBSECTION (C) IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
    4. Notwithstanding anything to the contrary in these Terms, MerchantCircle may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
  11. Miscellaneous
    1. The Terms embody the entire and exclusive agreement between the parties respecting the subject matter of herein, and supersede any and all prior related oral, emailed or written representations and agreements between the parties. No conditions, printed or otherwise, appearing on other contracts, orders or copy instructions which conflict with, vary, or add to these Terms will be binding on MerchantCircle, and any conflicting or additional terms contain in any other documents or oral discussions are void. No statements or promises by either party have been relied upon in entering into these Terms, except as expressly set forth herein.
    2. You or anyone agreeing to the Terms on behalf of Client represents and warrants that it has full legal power and authority to enter into these Terms, perform its obligations hereunder, and authorize the fee payments set forth in the Purchase Order(s).
    3. Notices under these Terms must be in writing and sent via facsimile, registered or certified mail or commercial courier to the parties at their respective addresses set forth herein, and in the case of MerchantCircle, to the attention of its General Counsel at 12667 Alcosta Blvd. Suite 200, San Ramon, CA.
    4. The Terms may not be amended or modified except as agreed upon in writing by the parties. No provision in the Terms may be waived, except pursuant to a writing executed by the party against whom the waiver is sought to be enforced. Client may not assign any rights or obligations under the Terms without MerchantCircle’s prior consent, and any purported assignment by Client shall be void. If any provision of the Terms is held to be invalid or unenforceable, the parties will substitute for the affected provision a valid or enforceable provision that approximates the intent and economic effect of the affected provision. Sections VII, VIII, IX, X and XI of the Terms will survive any termination of the Term.
 

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