Master Terms and Conditions Agreement

Master Subscription Agreement &TERMS AND CONDITIONS

BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED ONLINE AS PART OF THE ORDERING PROCESS OR SIGNING AN ORDER CONFIRMATION THAT REFERS TO THIS MASTER TERMS OF USE AGREEMENT, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF ORACLE INTERNET MARKETING’S ONLINE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OF SOFTWARE COMPONENTS ON A HOSTED BASIS AND ASSOCIATED SUPPORT OPTIONS (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND NOT SIGN THE ORDER CONFIRMATION, AND YOU MAY NOT USE THE SERVICE.

Welcome

Subject to the terms of this Master Subscription Agreement, Oracle Internet Marketing will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, and/or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Oracle Internet Marketing website incorporated by reference herein, including but not limited to Oracle Internet Marketing’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement. Oracle Internet Marketing offers multiple products and editions of its products.  This Agreement governs all products and services offered through the Oracle Internet Marketing website (the “Site”).

1. Privacy & Security; Disclosure

Oracle Internet Marketing’s privacy and security policies may be viewed online on the Site. Oracle Internet Marketing reserves the right to modify its privacy and security policies in its reasonable discretion from time to time.  Non-Oracle Internet Marketing customers who receive communications may “opt out” of receiving future marketing and other communications from Oracle Internet Marketing. Oracle Internet Marketing customers will not have the option of opting out unless they terminate their account with Oracle Internet Marketing in accordance with the terms of this Agreement.   Oracle Internet Marketing reserves the right to disclose who its customers are, including disclosure on the Site and in its marketing materials.

2. License Grant & Restrictions

Oracle Internet Marketing hereby grants you a non-exclusive, non-transferable, limited, revocable, worldwide right to use the Service during the License Term, solely for your own internal business purposes, subject to the terms and conditions of this Agreement.  In the event that your online ordering process or your Order Confirmation provided for a specific number of Users, your license to use the Service is limited to the specified number of Users.  All rights not expressly granted to you are reserved by Oracle Internet Marketing and its licensors.  You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking, reverse engineering, or other competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, Oracle Internet Marketing Technology or the Oracle Internet Marketing Content in any way; (ii) modify or make derivative works based upon the Service, Oracle Internet Marketing Technology or the Oracle Internet Marketing Content; (iii) embed the Service as a “iframe” or “frame” from within another application; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using ideas, features, functions or graphics that are similar to those related to the Service, or (c) copy any ideas, features, functions or graphics of the Service. The Service cannot be shared or used by more than one individual unless (and solely to the extent that) the Order Confirmation allows for sharing within your internal organization.  Sharing of the Service outside your organization is never allowed.  The proper assignment of username and passwords for the Service and adherence to all terms of this Agreement and Order Confirmation are your sole responsibility.  You are responsible for maintaining the confidentiality of your usernames, passwords and accounts.  Usernames and passwords may not be shared by more than one individual, and may not be transferred from one individual to another unless the original User no longer requires, and is no longer permitted, access to the Service.  You may use the Service only for your internal business purposes and shall not: (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein, or Oracle Internet Marketing’s sites, servers or networks; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; or (iv) take any action that imposes an unreasonably or disproportionately large load on Oracle Internet Marketing’s infrastructure.  Oracle Internet Marketing shall be entitled to adjust the scope of the Service and the underlying technical infrastructure to reflect the continuing development of the Service and technical advances.

3. Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Oracle Internet Marketing immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Oracle Internet Marketing immediately and use best efforts to stop immediately any copying or distribution of Oracle Internet Marketing Content that is known or suspected by you or your Users; (iii) not impersonate another Oracle Internet Marketing user or provide false identity information to gain access to or use the Service; (iv) not use the Service to defame, abuse, harass, threaten or otherwise violate the legal right of others; (v) publish, post, upload, email, distribute or disseminate any defamatory, misleading, infringing or unlawful content; or (vi) collect, store or transmit personal information about individuals or any information that is subject to applicable privacy laws or regulations. 

4. Account Information and Data

Oracle Internet Marketing does not own any keyword data, information, performance data, paid search campaigns or material that you submit to the Service in the course of using the Service (collectively, “Customer Data”).  You hereby grant Oracle Internet Marketing a worldwide, royalty-free, non-exclusive right during the License Term to use, reproduce, create derivative works of, distribute, perform, transmit and publish your Customer Data for the sole purposes of (i) processing your Customer Data in connection with providing the Service to you, and (ii) storing or hosting the Customer Data in a remote database or on the Site for access by your Users.  Your private Customer Data s accessible only to you and persons explicitly authorized by you; data is NOT shared with other customers, or with any other third party; provided that Oracle Internet Marketing reserves the right to use your Customer Data in order to compile, analyze and disclose to third parties aggregated metrics, data and trends related to the use of its offerings as long as such metrics, data and trends do not contain uniquely identifiable Customer Data.  You, not Oracle Internet Marketing, shall have sole responsibility for the accuracy, quality, integrity, legality, appropriateness, and intellectual property ownership or right to use all Customer Data, and Oracle Internet Marketing shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.  Use of the Service is subject to existing laws and legal processes.  Nothing contained in this Agreement will limit Oracle Internet Marketing’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service, which may include disclosing your Customer Data to the applicable authorities.

5. Intellectual Property Ownership

Oracle Internet Marketing alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Oracle Internet Marketing Technology, the Oracle Internet Marketing Content and the Service and any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service, and any aggregated metrics, data and trends compiled by Oracle Internet Marketing. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Oracle Internet Marketing Technology or the Intellectual Property Rights owned by Oracle Internet Marketing, Inc. The Oracle Internet Marketing name, the Oracle Internet Marketing logo, and the product and service names associated with the Service and Oracle Internet Marketing Content are trademarks of Oracle Internet Marketing or third parties, and no right or license is granted to use them hereunder.  The Site may include trademarks, service marks or logos of third parties, all of which are the property of their respective owners.  In addition, all content published on the Site belongs to Oracle Internet Marketing and/or its licensors under applicable copyright law.

6. Third Party Interactions

During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third party. Oracle Internet Marketing and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party. Oracle Internet Marketing does not endorse any sites on the Internet that are linked through the Service. Oracle Internet Marketing provides these links to you only as a matter of convenience, and in no event shall Oracle Internet Marketing or its licensors be responsible for any content, products, or other materials on or available from such sites. Oracle Internet Marketing provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services. Service features that interoperate with the Google AdWords or Microsoft adCenter programs depend on the continuing availability of the Google AdWords or Microsoft adCenter, as the case may be, application programming interface (“API”) and program for use with the Services. If Google Inc. or its affiliates (“Google”) or Microsoft, Inc. or its affiliates (“Microsoft”) ceases to make the Google AdWords API or program, or Microsoft adCenter API or program, as the case may be, available on reasonable terms for the Services, Oracle Internet Marketing may cease providing such Service features and you shall have no payment obligations with respect to such Service features for periods following such cessation.

7. Charges and Payment of Fees

You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current price of the chosen edition of the Service at the fee currently in effect.  All payments must be made in advance.  Payments may be made on a monthly, annual or one-time basis, and amounts owed are payable via automated recurring credit card payment or electronic invoices. All payment obligations are non-cancelable and all amounts paid are non-refundable.  You must provide Oracle Internet Marketing with a valid credit card or annual or one-time prepayment as a condition to signing up for the Service.  You hereby represent that you are authorized to provide any credit card you use to sign up for the Service.  An authorized License Administrator may adjust the Service edition by executing an additional written Order Confirmation or using the web-based customer administration system within the Oracle Internet Marketing product if it applies.  Changes to the Service edition will result in an adjustment to your fees, and will be subject to the following: (i) the term for the new fees and new Service edition will be coterminous with the preexisting License Term (either Initial Term or Renewal Term, as the case may be); (ii) Service fees will be the then current, generally applicable license fee; (iii) any fee increase that results from changes made in the middle of a billing month will be charged in full on a pro-rated basis for the portion of the billing month following such change; and (iv) any fee reduction that results from changes made in the middle of a billing month will not take effect until the next billing month and no partial refunds will be given.  Oracle Internet Marketing reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are the confidential information of Oracle Internet Marketing, and you agree not to disclose them to any third party.

8. Billing and Renewal

Oracle Internet Marketing charges and collects in advance for use of the Service.  Oracle Internet Marketing will automatically renew your subscription as described below, and bill your credit card or submit electronic invoices as mutually agreed upon. The renewal charge will be equal to the Service fee in effect during the prior term, unless Oracle Internet Marketing has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Oracle Internet Marketing’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Oracle Internet Marketing’s income. You agree to provide Oracle Internet Marketing with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Oracle Internet Marketing reserves the right to terminate your access to the Service in addition to any other legal remedies. All invoices and payments to Oracle Internet Marketing will be in US $.  If you believe your invoice is incorrect, you must contact Oracle Internet Marketing in writing within 45 days of the date of the invoice setting forth details regarding the inaccuracy to be eligible to receive an adjustment or credit.

9. Non-Payment and Suspension

In addition to any other rights granted to Oracle Internet Marketing herein, Oracle Internet Marketing reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum rate permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for the Service during any period of suspension. If you or Oracle Internet Marketing initiates termination of this Agreement, you will be obligated to pay the balance due on your account for the applicable Initial Term or Renewal Term, as the case may be, computed in accordance with the Charges and Payment of Fees section above. You agree that Oracle Internet Marketing may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. Oracle Internet Marketing reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Oracle Internet Marketing has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.

10. Term

This Agreement commences on the Start Date.  For all editions or versions of the product, the ”Initial Term” will be as you elect during the online subscription process or as otherwise mutually agreed upon in the Order Confirmation. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) (each, a “Renewal Term”) at Oracle Internet Marketing’s then current fees, unless either party gives Sufficient Written Notice.  “Sufficient Written Notice” will be thirty (30) days prior to the expiration of the Initial Term or applicable Renewal Term, unless otherwise agreed in the Order Confirmation. In the event this Agreement expires or is terminated for any reason, you agree to extract your Customer Data from the Oracle Internet Marketing platform prior to the effective date of such expiration or termination. You agree and acknowledge that Oracle Internet Marketing has no obligation to retain the Customer Data, and may delete such Customer Data 30 days after expiration or termination.  The following sections shall survive any expiration or termination of this Agreement: 1, 4, 5, 7, 9, 10 and 13 – 22, 23 (to the extent set forth therein) and 24. 

11. Termination for Cause

Any breach of your payment obligations or unauthorized use of the Oracle Internet Marketing Technology or Service will be deemed a material breach of this Agreement. Without limiting its ability to pursue other remedies, Oracle Internet Marketing, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement.

12. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Oracle Internet Marketing represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Oracle Internet Marketing help documentation (as may be updated from time to time) under normal use and circumstances. In the event the Service fails to perform substantially in accordance with such help documentation, and you promptly notify Oracle Internet Marketing, Oracle Internet Marketing will modify the Service and/or the documentation so that it conforms.  The foregoing is your sole and exclusive remedy for Oracle Internet Marketing’s failure to satisfy the foregoing representation.  You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

13. Mutual Indemnification

You shall indemnify and hold Oracle Internet Marketing, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; (iii) a claim arising from the breach by you or your Users of this Agreement; or (iv) any use or alleged use of your accounts or your passwords by any person, whether or not authorized by you, provided in any such case that Oracle Internet Marketing (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Oracle Internet Marketing of all liability and such settlement does not affect Oracle Internet Marketing’s business or Service); (c) provides to you all reasonably available information and assistance; and (d) has not compromised or settled such claim. Oracle Internet Marketing shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim alleging that the Service directly and knowingly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided that you (a) promptly give written notice of the claim to Oracle Internet Marketing; (b) give Oracle Internet Marketing sole control of the defense and settlement of the claim (provided that Oracle Internet Marketing may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Oracle Internet Marketing all reasonably available information and assistance; and (d) have not compromised or settled such claim. Oracle Internet Marketing shall have no indemnification obligation, and you shall indemnify Oracle Internet Marketing pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, services, hardware or business process(es).   If as a result of any infringement by the Service (other than as described in the preceding sentence) your use of the Service is enjoined by a court of law, Oracle Internet Marketing will either modify the Service to make it non-infringing, acquire a license for you to continue using the Service, or if neither option is possible, refund to you the applicable fees paid by you in advance.

14. Disclaimer of Warranties

ORACLE INTERNET MARKETING AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. ORACLE INTERNET MARKETING AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ORACLE INTERNET MARKETING AND ITS LICENSORS.

15. Internet Delays

ORACLE INTERNET MARKETING’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ORACLE INTERNET MARKETING IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

16. Limitation of Liability

IN NO EVENT SHALL ORACLE INTERNET MARKETING’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, THE ORACLE INTERNET MARKETING TECHNOLOGY OR CONTENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

17. Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

18. Local Laws and Export Control

The Service provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of other applicable countries. You acknowledge and agree that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States or any other applicable country maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. and other applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.  Oracle Internet Marketing and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Oracle Internet Marketing Content contrary to United States or other applicable law is prohibited. None of the Oracle Internet Marketing Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government and other applicable governmental bodies for such purposes.

19. Notice

Oracle Internet Marketing may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Oracle Internet Marketing’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Oracle Internet Marketing’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Oracle Internet Marketing (such notice shall be deemed given when received by Oracle Internet Marketing) at any time by any of the following: letter to Oracle Internet Marketing delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Oracle Internet Marketing, in either case, addressed to the attention of: VP of Finance.

20. Modification to Terms

Oracle Internet Marketing reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

21. Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of Oracle Internet Marketing but may be assigned without your consent by Oracle Internet Marketing to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Oracle Internet Marketing directly or indirectly owning or controlling 50% or more of you shall entitle Oracle Internet Marketing to terminate this Agreement for cause immediately upon written notice.

22. Free Trials

In the event that you are being provided with a free trial under this Agreement, all provisions of this Agreement pertaining to warranties by Oracle Internet Marketing, indemnification by Oracle Internet Marketing, payment obligations and similar shall not apply.  In addition, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination.  Further, Oracle Internet Marketing may terminate a free trial at any time and for any reason.

23. PPC Express

In the event you have submitted an Order Confirmation form for Oracle Internet Marketing’s PPC Express service (or any successor service) (the “PPC Express Service”), the additional terms set forth in this Section 23 shall apply.  The PPC Express Service shall be included in the definition of “Service” for all purposes of this Agreement, including without limitation for purposes of disclaimers of warranties and limitations of liability; provided that in the event of any conflict between the terms of this Section 23 and the terms of any other provision of this Agreement, the terms of this Section 23 shall govern. 

Except as set forth herein, (i) Oracle Internet Marketing shall set up a new Google AdWords account and Microsoft adCenter account under Oracle Internet Marketing’s channel relationship with each of these entities (sub-accounts),  (ii) you shall suspend or disable any direct account you maintain for Google AdWords and Microsoft adCenter for the duration of the term of the PPC Express Service, and (iii) Oracle Internet Marketing agrees to provide you with reports twice per month setting forth certain metrics regarding your sub-accounts, in such form as Oracle Internet Marketing shall reasonably determine.  Without limiting any rights of Oracle Internet Marketing hereunder, Oracle Internet Marketing may terminate the PPC Express Service, and your sub-accounts with Google and/or Microsoft, as provided in Section 6 and Section 11 of this Agreement.  You hereby agree to comply with all payment terms set forth in the Order Confirmation for the PPC Express Service. 

You are solely responsible for all text, logos, images and URLs (“Customer Content”), all advertisements and any web site reachable from the advertisements provided by you in connection with the PPC Express Service.  You hereby represent, warrant and covenant to Oracle Internet Marketing and its third party suppliers that (i) any Customer Content you provide is and shall be accurate, complete and current, (ii) you have all necessary rights and are fully authorized to publish the Customer Content and create or have created advertisements in connection with the PPC Express Service, and (iii) all Customer Content complies with the requirements set forth by Google and Microsoft on their respective websites with respect to the Google AdWords and Microsoft adCenter programs, as the case may be, including the trademark policies, editorial guidelines and creative limitations posted therein.  You hereby authorize Oracle Internet Marketing to allow such Customer Content and advertisements to be published throughout the network of advertising channels operated by Microsoft and Google, and their network of participating websites and other distribution outlets.  You further represent, warrant and covenant to Oracle Internet Marketing and its suppliers that (a) at all times during the term of the PPC Express Service you shall comply with all applicable law, (b) you will not generate, or encourage others to generate, automated or fraudulent impressions or clicks of advertisements on any Google or Microsoft advertising network, (c) your use of the Google AdWords program or Microsoft adCenter program is not for personal, family or household purposes, and (d) your advertisements do not and will not advertise illegal activity or constitute illegal or fraudulent business practices in the jurisdiction in which the advertisements are displayed. 

Further, you acknowledge and agree that Microsoft and/or Google may, in its sole discretion, (i) edit your Customer Content for size and fit purposes, (ii) label any advertisement as a “sponsored site,” “advertisement” or similar designation for clarification purposes, (iii) create advertisements based upon the Customer Content and other specifications provided by Oracle Internet Marketing through the applicable API, and (iv) create, delete, modify and optimize your sub-account. 

Oracle Internet Marketing does not own any Customer Content or advertisements provided by you hereunder, provided that you hereby grant Oracle Internet Marketing a worldwide, royalty-free, non-exclusive right to use, reproduce, create derivative works of, distribute, perform, transmit and publish your Customer Content and advertisements for the sole purpose of providing you with the PPC Express Service.  You shall retain ownership of all reports provided by Oracle Internet Marketing under this Section 23, provided that you hereby grant Oracle Internet Marketing a royalty-free, non-exclusive license to use such reports solely for its internal purposes.  Due to the fact that the Google and Microsoft sub-accounts are not designed for direct access by customers, Oracle Internet Marketing shall retain ownership of all sub-accounts created under your name with Google and/or Microsoft.  You hereby acknowledge and agree that Oracle Internet Marketing may use keywords that are identical or similar to those it submits on your behalf in connection with its provision of the PPC Express Service or any other service to its other customers.    

You hereby agree to indemnify, defend and hold Oracle Internet Marketing harmless from and against any and all loss, liability and expense (including reasonable attorneys’ fees) suffered or incurred by reason of any claims, proceedings or suits based on or arising out of (i) your breach of any of the representations, warranties or covenants set forth in this Section 23, or (ii) your Customer Content, advertisements or web sites, except to the extent of Oracle Internet Marketing’s gross negligence or willful misconduct.  ORACLE INTERNET MARKETING HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, RELATING TO THE PPC EXPRESS SERVICE, INCLUDING REPRESENTATIONS AS TO (A) THE QUALITY OF THE GOOGLE ADWORDS OR MICROSOFT ADCENTER PROGRAM, SITE OR API, THE GOOGLE OR MICROSOFT ADVERTISING NETWORK OR ANY ASSOCIATED PRODUCTS OR SERVICES, AND (B) THE EFFECT THE ADVERTISEMENTS MAY HAVE ON YOUR BUSINESS.  This paragraph and the preceding paragraph shall survive any expiration or termination of the PPC Express Service or this Agreement. 

24. General

This Agreement shall be governed by Massachusetts law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Confirmation, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Oracle Internet Marketing as a result of this Agreement or use of the Service. The failure of Oracle Internet Marketing to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Oracle Internet Marketing in writing. This Agreement, together with any applicable Order Confirmation, comprises the entire agreement between you and Oracle Internet Marketing and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.  In the event that any of your Users are contractors to your organization, you agree that such contractors shall be required by written agreement to comply with all applicable restrictions set forth in this Agreement, and you shall be fully liable for and indemnify Oracle Internet Marketing with respect to any failure of any contractor to so comply.

25. Definitions

As used in this Agreement now or hereafter associated herewith: “Start  Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date listed as the start date on the Order Confirmation; “Initial Term” means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “License Administrator(s)” means those Users designated by you who are authorized to purchase licenses online through the Site or by executing written Order Confirmations and to create User accounts and otherwise administer your use of the Service; “License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Confirmation(s); “Order Confirmation(s)” means the form evidencing the initial subscription for the Service and any subsequent Order Confirmations submitted online through the Site or in written form, specifying, among other things, the number of Users, if applicable, and other services contracted for (including, if applicable, the PPC Express Service), the applicable fees, the billing period, the payment method, and other charges as agreed to between the parties, each such Order Confirmation to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Confirmation, the terms of this Agreement shall prevail); “Oracle Internet Marketing” means Oracle Internet Marketing, Inc., a Delaware corporation, having its principal place of business at 177 Huntington Ave., 16th Floor, Boston, MA, 02115, USA; “Oracle Internet Marketing Technology” means all of Oracle Internet Marketing’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Oracle Internet Marketing in providing the Service; “Service(s)” means the specific edition of Oracle Internet Marketing’s online search engine marketing services, developed, operated, and maintained by Oracle Internet Marketing, accessible via http://www.Oracle Internet Marketing.com or another designated web site or IP address, and any ancillary online or offline products and services provided to you by Oracle Internet Marketing, to which you are being granted access under this Agreement, including without limitation the Oracle Internet Marketing Technology, the Oracle Internet Marketing Content and any support services agreed to by Oracle Internet Marketing; “User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Oracle Internet Marketing at your request).  “Oracle Internet Marketing Content” means any thought leadership published or otherwise made available by Oracle Internet Marketing, including without limitation white papers, blog content, newsletters and any other publications. 

Questions or Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@Oracle Internet Marketing.com.