Liposuction.com, Inc. Voice Services Terms and Conditions
These Voice Services Terms and Conditions ("Terms"), together with the terms set forth in any Order Form, constitute a legally binding and enforceable Service Agreement ("Agreement") between the Customer whose signature appears on the Order Form and Liposuction.com, Inc. Voice Service, ("Liposuction.com” or “LVS”). These Terms shall be deemed incorporated by reference into the Order Form; provided, that if any provision of the Order Form conflicts with any provision of these Terms, the provision of the Order Form shall prevail.
1.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). "Confidential Information" includes any non-public information of a Disclosing Party such as business plans, products, technical data, specifications, documentation, rules and procedures, contracts, presentations, know-how, product plans, business methods, product functionality, services, data, customers, markets, competitive analysis, databases, formats, methodologies, applications, developments, inventions, processes, payment, delivery and inspection procedures, designs, drawings, algorithms, formulas, or information related to engineering, marketing, or finance. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without fault of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is otherwise required to be disclosed by court order, law, regulation, securities exchange requirement, receipt of a criminal or civil subpoena, or written request from governmental authorities requesting information in connection with a criminal proceeding. Notwithstanding the foregoing, LVS shall have the non-exclusive right to use such Confidential Information in connection with the delivery of its Services and operation of its business, which may include, without limitation, reporting to LVS' customers and potential customers, on an aggregated basis, data related to and/or comprised of measures of the Services' performance, without identifying Customer as the source thereof and without disclosing Personal Information. For purposes of this agreement "Personal Information" shall mean personally identifiable or other personal records or information. Without limiting any other provision of this Agreement, each party shall retain all right, title and interest in and to its Confidential Information, including all intellectual property rights inherent therein or appurtenant thereto. For the avoidance of doubt, the parties acknowledge and agree that Confidential Information includes Personal Information, including, without limitation, call-related, caller related and call-receiver related Personal Information, that may be included in the Data processed under this Agreement.
1. RESTRICTIONS AND RESPONSIBILITIES
2.1 Equipment; Services; and Software. Customer shall be responsible for obtaining and maintaining any computer and phone equipment (and the like) and ancillary products (collectively, the "Equipment") needed to access and use the enhanced information and data services provided under this Agreement (collectively, the "Services"), which Services include, without limitation, the reporting and delivery of Customer's associated performance and user data in various media (collectively, the "Data"). Customer shall also be responsible for maintaining appropriate security safeguards in respect of property for which it maintains ownership, control, use under license and/or access, including without limitation, its Equipment, its Customer account, passwords and files, any Data acquired hereunder, any Confidential Information, access and all uses of the Services and Data through its Customer account or its Equipment. Customer shall be solely responsible for its use of the Customer Data (as hereinafter defined). Customer and its Clients (as defined below) will not (and will not cause any third party to), directly or indirectly: reverse engineer, decompile or disassemble the Services or any software, documentation or data related to the Services (collectively, "Software"); modify or create derivative works based on the Services or any Software; or copy (except for archival purposes), lease, distribute or otherwise transfer rights to the Services or any Software; or remove any proprietary notices or labels. The parties acknowledge and agree that Customer will be deemed responsible for each of its Clients, subcontractors, licensees, representatives, customers, agents and other Customer affiliates (collectively, "Customer Affiliates"), and their respective compliance with the terms of this Agreement.
2.2 Telephone Numbers. During the Service Term, subject to the terms of the Order Form and this Agreement, Customer may use the telephone numbers that are assigned to it by LVS (collectively, the "LVS Numbers") for its own performance-tracking or other analytics purposes, or it may re-assign such LVS Numbers for the same limited use by any of its advertiser or merchant clients or other customers (collectively, "Clients"), for display or publication on their websites or publications (print, electronic, or otherwise) or such other media designated by Customer (collectively, "Customer Media") or Clients (collectively, "Client Media") from time to time in accordance with the terms set forth herein. Clients shall not have the right to re-assign the LVS Numbers or to use them other than as explicitly set out herein without the prior written consent of LVS. All LVS Numbers remain the property of LVS, pursuant to agreements with its various telephone carriers and vendors, and are made available to Customer solely for use in accordance with the terms and conditions of this Agreement. Upon expiration or termination of this Agreement, all rights of Customer to the use of the LVS Numbers and Services shall cease absolutely and Customer (i) shall, and shall cause its Clients to, take all reasonable steps thereafter to remove, amend or cancel all publications, advertisements, promotions and other items bearing any LVS Number; and (ii) shall not thereafter distribute or sell any Customer Media or other item whatsoever bearing any LVS Number. The parties acknowledge and agree that Customer's use of any LVS Numbers may be further limited by, among other factors, changes to telephone carrier terms, changes in carrier relationships, guidelines recommended by Federal, provincial or local regulators, or changes to applicable law and regulation from time to time. LVS shall have the right upon written notice to Customer to exclude from this Agreement any individual Client Media or Customer Media.
2.3 Business Content. Pursuant to the terms of the applicable Order Form, and during the Service Term, Customer may elect to purchase for itself, or on behalf of Clients, certain LVS Media Services (as hereafter defined). "LVS Media Services" may include the display and publication of Business Content (as defined below) together with the applicable LVS Numbers on LVS-designated online or offline media, which may be developed or customized for Customer or Clients (such as proxy web sites and business profile pages, among others), LVS owned or operated media (such as business information and local search Web sites, among others) or third party media approved by LVS (collectively, "LVS Media"). Customer agrees to deliver, or allow LVS to access (including from Customer's Web site or other publicly available sources), as the case may be, all material or content required or requested by LVS in the format specified by LVS ("Business Content") at least seven (7) business days prior to the relevant publication date, or such other later date as may be requested by LVS during the Service Term. In connection herewith, Customer hereby grants LVS the non-exclusive right during the Service Term to use, reproduce, modify, create derivatives of, publicly display and perform, distribute and otherwise fully exploit the Business Content (and derivatives thereof) and to use such designated Customer or Client trademarks, service marks, trade names, logos, ad copy and other identifiers provided or made publicly available by Customer or Clients ("Marks") in connection with the publication thereof on LVS Media and, in the discretion of LVS, the registration of custom URLs for a Customer-or Client- branded Internet presence within LVS Media, as the case may be.
2.4 Recorded Call Services. Recording of calls under the Services is part of an optional product feature. Customer may elect not to use such product feature in connection with the Services. To the extent that Customer elects to use such product feature the Recorded Call Services Terms and Conditions shall apply to Customer and any Customer Affiliates, and are fully incorporated herein by reference: http://www.liposuction.com/legal/marchex-voice-services-recorded-call-terms.php
2.5 Customer Agreements with Clients. If Customer is a publisher or agency that intends to offer use of the LVS Numbers or Services to its Clients, then Customer shall be responsible for all use of the LVS Numbers and Services by its Clients and shall have in place with each of its Clients, written contractual terms ("Client Terms") that shall: (i) contain a disclaimer of warranties substantially similar to those set out in Sections 5.2 and 5.3 below, on behalf of LVS and its suppliers ; (ii) contain a limitation of liability of LVS and its suppliers substantially similar to those set out in Section 6 below; (iii) include representations and warranties from Client that Client is responsible for its use of the Services and in compliance with all applicable laws and regulations in its jurisdiction with respect to such Services (including, if applicable, Recorded Call Services (as defined herein)); (iv) include LVS and its suppliers as indemnitees; (v) designate LVS and its suppliers as third party beneficiaries of such provisions with a right to enforce such provisions against such Client; and (vi) only in the case that LVS Media Services are provided, contain appropriate licenses for Client's Business Content and Marks to be displayed and published by LVS on LVS Media (in accordance with such subsection), as may be elected by Customer from time to time (email sufficing). Furthermore, Customer shall be responsible for all marketing materials, advertising and informational content, and any oral or written representation that Customer or Customer Affiliates may make to any current or potential Clients; and Customer shall neither make nor include in the Client Terms any representations or warranties on behalf of LVS or with respect to LVS, its affiliates or the Services.
2.6 Customer Representations. Customer represents and warrants that: (i) it has full power and authority to enter into this Agreement; (ii) it has and will have, during the Service Term, all consents, approvals, licenses and permissions, necessary for such party to perform all of its obligations hereunder and for LVS to exercise all of its rights hereunder; (iii) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms; (iv) it shall use the Services (and any Data acquired in connection therewith) in full compliance with all applicable laws and regulations and rules of any governmental or regulatory body, and including without limitation, those relating to advertising, privacy, marketing and telephone solicitation (for the avoidance of doubt, this shall include, without limitation, federal "Do-Not-Call" rules); (v) it shall (and shall cause its Clients to represent and warrant that they shall) obtain and maintain throughout the term of this Agreement, the full right and authority (including by way of any consents required under applicable law) for (a) the transfer of Personal Information to LVS as contemplated hereunder and (b) any other collection, use, transfer, disclosure or other processing by LVS of such information for the purposes contemplated under this Agreement; (vi) it has established proper procedures to protect the privacy of its Clients' and their customers' Personal Information, and otherwise comply with all applicable laws with respect to the Data acquired by Customer and Clients hereunder; (vi) in the event that LVS Media Services are provided, Customer has the right to use and grant such licenses and permissions to LVS under this Agreement with respect to the use of the designated Business Content and Marks; and (vii) in the event that LVS Media Services are provided, none of the Business Content or Marks will (a) infringe or violate any right of any third party, including without limitation, copyrights, trademark rights, or other intellectual property rights; and rights of privacy, publicity or freedom from defamation; (b) violate any governmental law, rule or regulation, including without limitation, laws relating to obscenity and/or pornography, (c) contain any virus, worm, Trojan horse or other contaminating or destructive feature, or (d) contain any offensive material. Notwithstanding Section 2.7 of the Agreement, LVS shall have no indemnity obligations to Customer (or its Clients, affiliates, employees, representatives or agents) for any Claim (as hereinafter defined) caused as a result of a breach by Customer or its Clients of the foregoing representations and warranties, and Customer shall indemnify LVS for any Claim incurred by LVS which arise in such circumstances.
2.7 Indemnification. Each party (the "Indemnifying Party"), at its own expense, will indemnify, defend and hold harmless the other party (the "Indemnified Party") and the Indemnified Party's affiliates, employees, representatives and agents from and against any claim, demand, action, investigation or other proceeding, including but not limited to all damages, losses, liabilities, judgments, costs and expenses arising therefrom, brought by any third party against the Indemnified Party (collectively, an "Claim") to the extent that the Claim is based on, or arises out of an allegation that the Indemnifying Party's performance hereunder violates any applicable law, rule or regulation (except that Customer and Customer Affiliates shall be solely responsible for their use of any Recorded Call Services and for their use or disclosure of any information obtained through any Recorded Call Services) or infringes the rights of any third party, including but not limited to intellectual property rights. Customer at its own expense, will indemnify, defend and hold harmless LVS and LVS's affiliates, employees, representatives and agents from and against any Claim for, including without limitation, libel, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with: (i) the Customer Data (as hereinafter defined) Business Content, Marks or Customer Media or contents therein; (ii) any Customer or Client use of Recorded Call Services in violation of the applicable terms and conditions; (iii) Customer or Client's breach of any term, condition, agreement, representation or warranty hereunder; (iv) Customer or Client's telemarketing or other marketing activities; or (v) Customer or Client's use of the Services, the Data, the LVS Numbers and the Confidential Information. Although LVS has no obligation to monitor the Business Content provided by Customer or Customer's use of the Services, LVS may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the Agreement.
2.8 Reservation of Rights. This Agreement is not intended to, and shall not affect, ownership by either party of, or rights of either party in, any of its intellectual property rights, content, products and services, and nothing set forth in this Agreement shall be construed as the assignment or transfer of any ownership rights in any of the foregoing from one party to the other. Other than the express licenses set forth herein, nothing in this Agreement, and nothing in any statement made in connection with this Agreement, will be deemed a license (by implication, estoppel or otherwise) under either party's patent rights or other intellectual property rights. Any Data collected or created hereunder, during the Service Term and through the Customer's account, that is specific to Customer, Client or their respective advertisers or merchant users is the intellectual property of Customer (collectively, the "Customer Data"), subject to LVS's non-exclusive right to use such Data in connection with the delivery of its Services and operation of its business, which may include, without limitation, reporting Customer Data on an aggregated basis in accordance with the terms hereof . Neither party's performance according to the terms and conditions of this Agreement will in any way broaden the intellectual property rights of the other party. Both parties reserve all rights not expressly granted.
3. PAYMENT OF FEES
Customer will pay LVS the then applicable fees for the Services as set forth in the Order Form and the relevant Attachments (the "Fees"). Unless otherwise indicated, all dollar amounts referred to in this Agreement or the Order Form are in the lawful money of the United States of America. LVS reserves the right to require a cash deposit as security payment for the Platform Services Fees. Furthermore, LVS reserves the right to change the Fees or applicable charges and to institute new charges and Fees after the end of the initial Service Term or then current renewal term, upon thirty (30) days prior written notice to Customer (which may be sent by email). If Customer's use of the Services exceeds those Services set forth in the Order Form, Customer agrees to pay the additional fees that apply. Customer will make payment no later than thirty days after the end of the applicable month, or the Services may be terminated immediately by LVS. Any disputes with respect to such payment shall be made by Customer no later than five days after the end of the applicable month. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than taxes based on LVS's net income.
4.1 Subject to earlier termination as provided below, the effective term of this Agreement (the "Service Term") shall first be for the period specified as the initial Service Term in the Order Form, and shall be automatically renewed for additional periods of the same duration, unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Either party may terminate this Agreement for convenience at any time upon sixty (60) days' prior written notice.
4.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days' prior written notice, if the other party breaches any of the terms or conditions of this Agreement (including, without limitation, the LVS right to terminate in the event of Customer's failure to meet the Monthly Revenue Commitment set forth in the Order Form), and such breach remains uncured at the end of such thirty (30) day period. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Notwithstanding the foregoing, in the event that Customer does not meet the business credit standards established by LVS (which may be modified from time to time), or there is a material adverse change in the credit profile of Customer during the Service Term, LVS may elect any or all of the following: to terminate or suspend performance immediately; and to require pre-payment for the Services hereunder or other commensurate payment terms.
4.3 Upon any termination, unless otherwise limited or restricted by applicable law or regulation, LVS may maintain archived Customer Data for at least thirty (30) days following termination of the Agreement, and, upon written request by Customer, will deliver such archived Customer Data to Customer in a mutually agreed upon format (at Customer's expense). Each party shall comply with the applicable Agreement terms and applicable laws and regulations, as each may apply to the party and their respective obligations thereunder.
4.4 Subject to the foregoing, upon termination hereof, at the request of the other party, each party shall return to the other party or destroy, and certify in writing as to such destruction, the other party's Confidential Information. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification, and limitations of liability.
5.1 LVS makes no representation with respect to Customer's use of the Recorded Call Message functionality, any call recording, or Customer or Client use of consumer information that may be provided by LVS.
5.2 LVS DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, REGARDING THE LEVEL OR NUMBER OF IMPRESSIONS OF OR CALLS ON ANY ADVERTISEMENT OR PROMOTION, THE TIMING OR PLACEMENT OF DELIVERY OF SUCH IMPRESSIONS AND/OR CALLS, OR THE AMOUNT OF ANY REVENUE TO BE EARNED BY CUSTOMER UNDER THIS AGREEMENT.
5.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND LVS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. LVS MAY IN ITS SOLE DISCRETION REMOVE ANY DATA FROM ITS SERVERS AT ANY TIME FOR ANY REASON.
6. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO A PARTY'S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER LVS AND ITS SUPPLIERS, ON THE ONE HAND, NOR CUSTOMER, ON THE OTHER HAND, SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) FOR ANY MATTER BEYOND SUCH PARTY'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO LVS FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, ANY FAILURE OF CUSTOMER OR ITS CLIENTS TO COMPLY WITH APPLICABLE LAW OR REGULATION SHALL NOT BE COVERED BY THE FOREGOING LIMITATION OF LIABILITY.
7. GOVERNMENT MATTERS
Customer may not remove or export from Customer's jurisdiction or allow the export or re-export of the Services or anything related thereto in violation of any applicable export control or similar restrictions, laws or regulations. LVS is not a telephone company. LVS purchases telecommunications services and uses such services to provide enhanced service products to Customer. If at any time LVS's right to allocate LVS Numbers or otherwise provide the Services to Customer is impaired or regulated by any governmental or quasi-governmental entity, including, without limitation, the U.S. Federal Trade Commission, the U.S. Federal Communications Commission orany state public utility commission, LVS shall have the right to terminate, suspend or amend this Agreement automatically upon written notice and to cause Customer to remove or withdraw any advertising material containing any LVS Number. LVS shall have no liability or obligation to Customer of any kind arising out of such a termination, suspension or change in Services, as the case may be.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Customer may not assign or sublicense this Agreement without the prior written consent of LVS. This Agreement and Order Form are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement and Order Form. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever, it being agreed that the relationship of the parties is that of independent contractors.
All notices under this Agreement and Order Form will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement and Order Form shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions. Customer irrevocably submits to venue and jurisdiction in the federal and state courts in King County, Washington for any dispute arising out of or related to this Agreement, and waives all objections to jurisdiction or venue of such courts and agrees not to commence nor prosecute any such dispute other than in such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. LVS may modify the terms and conditions of this Agreement by posting the revised terms and conditions to its website. Customer's continued participation in the Services following such changes signifies Customer's acceptance of such modification.
Effective [[DatePosted]], 2009