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"pay-per-call" Advertiser Agreement
This Agreement ("Agreement") is a contract by and between You ("you" or "your" or “client” or “advertiser” means any person or entity using the Service which You represent, or any agents or representatives authorized to represent You), and Cabbola USA, Inc (d.b.a p3m3 unless otherwise stated, "pay-per-call" will refer collectively to Cabbola USA, Inc. and its subsidiaries). Cabbola USA will be referred, for the purposes of this Agreement, collectively as the “Service Provider/Partner” or “We” or “Us”. This Agreement applies to your use of all aspects of the pay-per-call services, including the pay-per-call Management Interface, Phone-Link, and 1-800 Number, as well as the pay-per-call Ad listing or creative (collectively the "Services"). You agree that by clicking on the button to submit the registration form, and/or your continued use of the Services constitutes your binding acceptance of the terms and conditions below, including any changes or modifications made by the Service Provider as permitted below, in the same way a paper contract would also constitute such. You may not utilize the Services if you do not accept the terms of this Agreement in full, and if at any time the terms and conditions of this Agreement are no longer acceptable to you, you should immediately cease all use of the Services by providing a written cancellation notice to Cabbola USA, Inc. PO Box 208, Ozona, Florida 34660 14 days or more, previous to your automatic renewal of this contract. The term of this contract will be 75 days from the date signed below with an automatic renewal unless a cancellation is made in writing and sent to the above address.
1. ELIGIBILITY. The Services are available only to businesses and/or persons who can form legally binding Agreements under applicable laws of USA and Canada. Without limiting the foregoing, the Services are not available to individuals under the age of 18. In the event you avail of the Services for and on behalf of a business entity, you have the requisite authority to accept and execute this Agreement. If you do not qualify, do not attempt to use the Services. You will provide true, accurate, and current information about yourself as requested by the sign up, registration or billing process. We may refuse to offer the Services to any person, corporation or organization and may change the criteria for eligibility, at any time, in its sole discretion. We retain the right to terminate your account and your rights to use the Services if there are reasonable grounds to believe that any data you provide is or becomes untrue, inaccurate, not current or incomplete, or if you are in breach of the terms and conditions of this Agreement. The Services allow phone call leads to and from valid USA and Canada phone numbers. Calls to and from other countries can be enabled with the Services, but different connection rates may apply, and allowance of any other country to be enabled is subject to Service Provider’s sole discretion.
2. YOUR ACCOUNT. You are responsible for maintaining the confidentiality of your account number and password and for restricting access to your account number and password. You agree to accept responsibility and liability for all activities that occur under your account or password whether lawful or unlawful. You are also solely responsible for all uses of your account and password, whether or not actually or expressly authorized by you. We do not sell products or services for children. If you are under 18, you may use our Services only with involvement of a parent or guardian. We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion. Violation of this Agreement may result in immediate deletion of your account. In order to ensure that we are able to provide high quality services that are responsive to your needs, you agree to allow our employees to access your account and records on a case-by-case basis to investigate complaints. We will not disclose the existence or occurrence of such an investigation unless required by law.
3. SERVICE PROVIDER. We are only a service provider. We act as a service provider by creating, hosting, maintaining, and providing our Services to you via the Internet. We do not have control over the Prospect who is making a call to you over the Internet using the pay-per-call network, and we do not verify, guarantee or make any representations regarding the identity or qualifications of any such Prospect. Therefore, Cabbola USA is not responsible for the ultimate quality of the lead, success or failure in closing a sale, or intentions of the prospect. Use of the Services is solely your responsibility. We do not record connected Service calls and therefore are unable to know the content of such phone call conversations and so cannot be held responsible in any way for any aspect of the content of such communications. If you suspect a Prospect may have defrauded you, or has violated the law, we recommend You contact your local law enforcement authorities for assistance. Meeting in person with Prospects after a Phone Lead connection is done entirely at your own risk. If you have a dispute with a prospect, or suffer any harm arising out of or connected with the Services, you hereby waive all claims against and release all the Service Provider (including employees, officers, directors, shareholders, subsidiaries, suppliers, partners and agents) from any and all liability for claims, demands, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any relationship initiated via the Services or with regard to any such dispute.
4. DEPOSIT, BALANCE, TRANSACTION & PAYMENT. You agree to pay $49 setup fee and allow Cabbola USA, Inc. d.b.a p3m3 to make periodic deposits to your pay-per-call Service account via the p3m3 Client interface and/or ZiffLeads Client Interface, powered by SPG Solutions, LLC., to create a balance to enable and keep operational your usage of the Service. Deposits will be made via your credit card provided and authorized by you for all deposits made during the term of this agreement. Your balance will increase and decrease as we deposit funds to your credit card. You hereby authorize us to collect fees for each successful pay-per-call, "Transaction", by debiting your Client account balance immediately upon conclusion of each transaction, regardless of the quality of the ‘lead’ or completeness of the ‘sale’. You agree to the pre-set pay-per-phone call charges as made evident to you before or upon registration, that these charges will be deducted from your deposited account balance on an ongoing basis in real-time as call lead activity occurs through your pay-per-call Service account. Your account will be set up with the ‘auto-replenish’ feature in your account billing information in Your Client account interface, your credit card account will be automatically charged the ‘auto-replenish amount’, as entered by You within this agreement, each time your balance drops below the auto-trigger amount, also entered by You in this agreement. Once a deposit has been made the value of the balance can only be realized via pay-per-call. A deposit invoice will be sent to your email address each time a deposit, either auto or manual, is made from your credit card to your pay-per-call account from either Cabbola USA, Inc and/or SPG Solutions, LLC and/or any of each companies subsidiaries. You agree to pay all applicable charges under this Agreement, including any applicable taxes or charges imposed by any government entity. We reserve the right to adjust the Service prices and/or payment plans at any time effective immediately.
5. PER-CALL RATE PRICING & PRICING CHANGES & PER-CLICK RATE PRICING. You understand that the Service Provider sets the per-call rate pricing for each individual category that you might categorize your advertisements under. These rates are set solely at the discretion of the Service Provider and are subject to modification at anytime. However, pricing modifications will, in general, only be applicable to subsequently created new advertisements. In most cases, any such pricing modification shall not be applicable to advertisements that have been previously created, and those advertisements shall maintain their previously assigned pricing. Existing advertisements however, will be subject to new pricing if the advertiser modifies the advertisement by changing the assigned category for the advertisement to a different category that has such new pricing. In addition, in some cases, the per-call rate may be modified for existing advertisements. In such cases, however the Service Provider shall provide advance notice of at least seven (7) days to You of such price change intention. The per-call rate pricing consists of a one-time flat per-call lead rate, set in US dollars, which includes an allotted number of free minutes for each new call. For repeat calls within twenty-four (24) hours of the original call there is no per-call fee charged, but for such calls as well as initial calls that extend beyond the allotted number of free minutes, there is a per-minute fee that applies. In addition, if you choose the option to provide a hyperlink from your Business Profile Page to a chosen web site address, then there will be a fee applied for all clicks initiated by a visitor from the Business Profile Page to your site. Any repeat clicks from the same IP address within one (1) hour will not be charged. All rates are category specific and are displayed during the ad creation process when you choose a category within your Advertiser web interface.
6. MISSED LEAD RECOVERY RATES. You understand that the Service Provider has currently set the Missed Lead Recovery price at 50% of the prevailing one-time flat per-call lead rate. You have the right in your sole discretion to utilize or not utilize the Missed Lead Recovery system to access the contact information of the caller for those calls that are not successfully connected. If you choose to recover a Missed Lead, thereby agreeing to the displayed price, all sales are final and there are no refunds, regardless of the nature or quality of the lead.
7. REGULATIONS, COMPLIANCE, PROHIBITIONS, MODIFICATIONS. Use of the Services by You is only for its express stated purpose as a performance-based advertising system and NOT for any illegal or fraudulent activity or with the intention to defraud customers, or to try to gather confidential or unauthorized information within or about the Services, or for harassment of other Clients or Prospects, or to try to attain unauthorized access to other Client accounts within the System. You will always provide accurate and current account information and never attempt to falsify your identity, which can be a federal offense. You will never submit any slanderous, libelous, profane or obscene language or images into your Service account media that may be published for public view. You will not use the Services to harm any third party in any way in terms of promoting violence or discrimination, promoting goods or services that cause physical or mental harm, or violating any privacy or intellectual property rights. You will not enter Your web site address or your actual telephone number into the content of your Service account media. You understand that the Service Provider will delete at its sole discretion any such transgressions found in your Advertisement media and retain the option to terminate the Services. In addition, You understand that the Service provider may from time to time and at its sole discretion correct, modify, alter, enhance your advertisement content to help improve advertisement effectiveness or to make suitable for various other media including, but not limited to print, audio, mobile phone based SMS text messages, and video.
8. PRIVACY. Your use of the Services is subject to and is governed by our Privacy Policy. We reserve the right to amend our privacy policy from time to time without notice to you by posting the updated Privacy Policy to our web site(s).
9. BILLING DISPUTES. If you have any dispute regarding any charges made through the Services, you must notify us in writing within 24 hours of any such charge; failure to so notify us shall result in the waiver by you of any claim relating to any such disputed charge. Charges shall be calculated solely based on records maintained by the pay-per-call leads System.
10. MODIFICATION & TERMINATION. The Service Provider reserves the right in its sole discretion to modify the terms and conditions of your use of the Service, without notice. All modified terms and conditions will be effective immediately after initial publication. If any modification is not acceptable to you, your only recourse is to discontinue use of the Service. By continuing use following any posting of a new Service Agreement or policies, you accept and agree to be bound by the new Agreement and/or policies. We may at any time terminate the Service, terminate this Agreement, or delete any Client from the system. We will notify you via email of any such termination or deletion, which shall be effective immediately. Upon deletion or termination or expiration of this Agreement for any reason, you shall remain liable for any amount due for phone calls already delivered through the Services and conversely remittance of any outstanding balance in your account will be made accordingly unless violations of this Agreement require otherwise.
11. CONFIDENTIALITY. You agree not to disclose Our Confidential Information, as detailed without limitation below, without Our prior written consent:(a) all Service Provider’s technology, programming, specifications, software, coding, settings, materials, guidelines and documentation relating to the Services;(b) any statistics relating to Your site(s) performance with the Services provided to You by Us; and (c) any additional information designated in writing by Us as "Confidential" or an equivalent designation. Confidential Information does not include however, information that has become publicly known through no breach by You or Us, or information that has been: (d) developed independently without access to or use of Our Confidential Information, as evidenced in writing; (e) received by You rightfully from a third party; or (f) required to be disclosed by law or by a governmental authority.
12. LIABILITY. Service Provider shall not be responsible for any act or omission by You. We shall not be liable for any actual, incidental, consequential or punitive damages resulting, directly or indirectly, from the Services provided hereunder, including but not limited to transmission outages, interruptions and blockages. Service Provider’s maximum aggregate liability to You related to or in connection with this Agreement whether under theory of contract, tort (including negligence), strict liability or otherwise will be limited to the total amount paid by You to us for one month's invoice. You acknowledge liability for any and all charges resultant of intentional or unintentional usage, including but not limited to fraudulent misuse of the Service.
13. NO WARRANTY. YOU AGREE TO USE THE SERVICES AT YOUR OWN RISK. Cabbola USA, Inc DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND THE SERVICE PROVIDER, DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, OMISSIONS, COMPLETENESS, TIMELINESS OR DELAYS WITH RESPECT TO THE SERVICE, INFORMATION OR PRODUCTS AND NON-INFRINGEMENT. WE HAVE THE RIGHT TO TAKE SOME OR ALL OF THE SERVICES OFFLINE AS NEEDED TO INSURE THE PROPER FUNCTIONING OF THE SYSTEM.
14. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE SERVICE PROVIDER, AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND PROPERTY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, AGREEMENTORS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY ACTION IN AGREEMENT, TORT, OR OTHERWISE, EVEN IF THE SERVICE PROVIDER, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES OF ANY KIND WHATSOEVER WITH RESPECT TO THE SERVICES, INFORMATION OR PRODUCTS PROVIDED ON THE WEBSITE. IN PARTICULAR, WE WILL NOT BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES, ITS WEBSITE OR THE INFORMATION OR DATA CONTAINED THEREIN, WHETHER SUCH DAMAGES ARISE IN AGREEMENT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE. SERVICE PROVIDER AND ITS AFFILIATES ENTIRE LIABILITY UNDER THIS AGREEMENT, IF ANY, FOR ANY CLAIM(S) FOR DAMAGES RELATING TO THE SERVICE, INDIVIDUALLY OR JOINTLY, WHETHER BASED IN AGREEMENT OR TORT, WILL NOT EXCEED ANY AMOUNTS ACTUALLY REALIZED BY THE SERVICE PROVIDER FROM YOU (LESS ANY PAYMENTS TO YOU) DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING ANY SUCH LIABILITY.
15. NOTICE. Any notices required or given under this Agreement shall be in writing and sent by First Class mail to addressee's last known address. This notice shall be effective on deposit with the U.S. Post Office.
16. RELATIONSHIP OF PARTIES. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties and You do not have any authority of any kind to bind Service Provider in any respect whatsoever.
17. WAIVER. No term or provision of this Agreement shall be deemed waived, and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach or default by the other, whether express or implied, shall constitute a consent to, waiver of or excuse for, any different or subsequent breach or default.
18. PUBLICITY. You agree that We may use Your name and logo on our web site, in customer lists, presentations, and marketing materials. Likewise, You may use Our logos, trademarks, service marks, and domain names, so long as the use abides by the terms of this Agreement.
19. INDEMNITY. You hereby indemnify, defend and hold harmless Service Provider, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from your use of our Services, your violation of the this Agreement or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. The Terms of Use will inure to the benefit of Service Provider, its successors, assigns and licensees.
20. OWNERSHIP & TRADEMARK You acknowledge and agree that the Services and Service Provider logos and trade names are the property of Service Provider or its affiliates or suppliers. You also acknowledge that Service Provider owns and/or has all requisite rights in and to any software necessary to provide the Services under this Agreement. The “p3m3” logo is service mark of Cabbola USA, Inc. All other marks that appear throughout the Services are the property of their respective owners. You fully understand and acknowledge that they are not granted any right or license whatsoever to use any of the marks and logos owned by Service Provider or of any such other entity, and that all such uses of any of the marks appearing throughout the Services is strictly prohibited without prior written consent of Service Provider. You understand that the Services and its web site also contain or may contain copyrighted or other proprietary materials of Service Provider, its sponsors, advertisers or other third parties. You understand and acknowledge that, except as strictly necessary for personal viewing and use of the Services or the web site by means of a standard Internet browser (such as Microsoft Internet Explorer and Mozilla Firefox), You are not granted any right or license to use, link to, reproduce, reverse engineer, modify, duplicate, distribute, display or perform any such copyrighted materials used or displayed on this Web site or to permit others to do the same, and that all such uses are prohibited without the prior written consent of Service Provider.
21. FORCE MAJEURE. Service Provider shall not be liable for any failure, interruption and/or diminution of Services in the event that such failure, interruption and/or diminution is the result of any fire, flood, epidemic, earthquake or any other act of explosion, strike or other disputes, riot or civil disturbance, war (whether declared or undeclared), armed conflict, any municipal ordinance, or state or federal law, governmental order or regulation, or order of any Court of competent jurisdiction, or other similar forces not within the control of Service Provider.
22. MISCELLANEOUS.
23. You will be responsible for all reasonable expenses (including attorneys' fees) incurred by Service Provider in collecting unpaid amounts under this Agreement.
24. This Agreement is executed and shall be governed by the laws of State of California, excluding its conflict of laws principles.
25. This Agreement, together with online Quote(s) and Service Provider' policies referred to in this Agreement is the complete agreement and understanding of the parties with respect to the subject matter hereof, and supersedes any other agreement or understanding, written or oral. Both parties agree that Service Provider reserves the right to make unilateral modifications to this Agreement with or without notice to You, except as otherwise provided herein.
26. Should any provision of this Agreement be declared void or unenforceable, such provision will be deemed amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of this Agreement will remain in full force and effect