Please read these terms and conditions carefully.
This is a binding contract.
These Funnelwide Standard Terms and Conditions (these
Terms) form a legally binding agreement by and between Funnelwide, Inc., a Delaware corporation (
Funnelwide), and you, the advertiser (
Advertiser), as of the date that you accept these Terms in a click-through format (the
Effective Date). Advertiser acknowledges and agrees that by clicking on the “I ACCEPT” button (or similar buttons or links as may be designated to show acceptance of these Terms), Advertiser is entering into a legally binding contract. Advertiser hereby agrees to the use of electronic communication in order to enter into agreements, to create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Service. If an individual is accepting these Terms on behalf of his or her employer or another entity, such individual represents and warrants that he or she has full legal authority to bind his or her employer or such other entity to these Terms. If such individual does not have such authority, then he or she may not use the Site or the Service on behalf of such employer or such other entity and must discontinue all use of the Site and the Service immediately.
On or through the website located at www.funnelwide.com, or such other site or sites or sub-domains as designated by Funnelwide from time to time (collectively, the
Site), Funnelwide provides various products and services pursuant to which it displays images, text and hyperlinks supplied by advertisers on websites owned by such advertisers or unrelated third parties (collectively, the
Services). Advertiser may select from a variety of Services offered as described below. The Services Funnelwide provides pertain to articles, blog posts, user comments, messages, information, text, data, graphics, news articles, photographs, images, illustrations, software, audio clips and video clips provided by Advertiser (
Content) through the Site and displayed and promoted via the Service. Funnelwide reserves the right to reject any Content for any reason. Additionally, Advertiser may request that Funnelwide create content for Advertiser (
Articles) to be displayed and promoted through the Service. Funnelwide will not advertise on any website that contains pornographic, hate material, gambling-related material or any other material deemed illegal or offensive by Funnelwide or under applicable law. With respect to each advertising campaign (each, a
Campaign) with respect to which Advertiser desires to engage Funnelwide to perform Services, Advertiser shall execute and deliver to Funnelwide an insertion order, substantially in the form hosted on the Site (an
Insertion Order), setting forth the Budget (as defined below), the Services to be rendered by Funnelwide and other specifications for the Campaign. Each Insertion Order shall be governed by these Terms.
Representations and Warranties.
Advertiser represents and warrants to Funnelwide that:
- Advertiser is the owner (or are otherwise the authorized licensee) of the copyright or other intellectual property rights in any Content provided to Funnelwide hereunder, and have the right to deliver and license to and otherwise authorize Funnelwide to display, perform, distribute and exploit such Content in the manner contemplated by these Terms without additional fee or payment whatsoever to any third party;
- all Content provided to Funnelwide hereunder, all information or materials provided to Funnelwide hereunder in connection with any Articles, and any Articles approved by Advertiser hereunder are true and accurate in all material respects;
- Advertiser shall not impersonate any person or entity or otherwise misrepresent Advertiser’s affiliation with a person or entity; and
- none of Advertiser’s Content shall violate the terms of Section 7.3.
Terms of Payment; Credit Requests
Advertiser will designate either a daily budget or a total budget (as applicable, the
Budget) for each Campaign, calculated on a Cost Per Acquisition (e., CPA), Cost Per Thousand Impressions (i.e., CPM), or Cost Per Click (i.e., CPC), or SpendPlus basis (each, a
Metric), as the case may be, which budget shall be included in the applicable Insertion Order. Due to the nature of Internet marketing, Funnelwide has the right to deliver, and Advertiser agrees to pay up to 110% of the Budget. Unless otherwise agreed, upon the entire depletion of the Budget, Advertiser’s account will be inactive until the funds in Advertiser’s account are replenished. Notwithstanding anything to the contrary contained herein, Advertiser may request that Funnelwide use good faith efforts to cancel a Campaign prior to its completion. Advertiser acknowledges and agrees that Funnelwide may continue the Campaign for up to seventy-two (72) hours following the cancellation request, and that Advertiser will be responsible for all fees incurred during such period.
All Budget amounts are required to be pre-paid by credit card and/or wire transfer. Notwithstanding the foregoing, if Advertiser desires to pay on extended payment terms and not via pre-pay (
Extended Terms), Advertiser may apply for Extended Terms from Funnelwide. Funnelwide may deny Extended Terms in its sole discretion. In order to assist Funnelwide in determining whether to grant Advertiser Extended Terms, Advertiser’s creditworthiness must be verified. To apply for Extended Terms, Advertiser must obtain a credit application from Funnelwide and complete and return it via email to firstname.lastname@example.org. Upon Funnelwide’s receipt of Advertiser’s credit application, Funnelwide may request additional information from Advertiser and Advertiser must provide Funnelwide all requested information. In its review of Advertiser’s credit application, Funnelwide may conduct lien searches and obtain other information from third parties to verify the responses in Advertiser’s application.
If Advertiser is provided Extended Terms pursuant to Section 3.2, Advertiser agrees to make all payments when due and Funnelwide shall consider any failure to pay a payment when due a material breach of these Terms.
Funnelwide software and servers shall track all relevant Metric information for each Campaign, and Advertiser acknowledges and agrees that, subject to this Section 3.4, Funnelwide’s reports and statistics will be controlling for all purposes, including, without limitation, calculation of payments due under these Terms. Funnelwide will grant Advertiser access to an online reporting tool which allows Advertiser to review applicable Metric information. If and to the extent Funnelwide makes any real-time (or near real-time) online reporting to Advertiser, such information shall at all times be subject to customary calendar month-end adjustments made by Funnelwide in its sole discretion. Advertiser will pay for Services based on Funnelwide’s reporting. If Advertiser is provided Extended Terms pursuant to Section 3.2, Funnelwide will deliver an invoice to Advertiser after the close of each calendar month (the
Invoice). The Invoice will report the applicable Metrics of such calendar month. Advertiser acknowledges and agrees that a click on Content or Articles by an Internet user (a
Click) does not guarantee that such user will actually arrive at the requested target page on Advertiser’s website(s) (
Landing Page) and that a Click will be considered valid even if the target Landing Page is busy or not available. For all payments to Funnelwide, Advertiser shall pay Funnelwide within the number of days set forth in the “Payment Terms” portion of the Invoice (or within thirty (30) days, if no number is so set forth) after the Invoice is delivered, or as otherwise agreed to by Funnelwide and Advertiser in writing (the
Due Date). Any payment not made by the Due Date shall accrue interest at the rate of 1.5% per month or any fraction thereof, or if less, the highest rate permitted under law. All costs of collection, including reasonable attorney’s fees, court costs and related expenses, incurred by Funnelwide shall be borne by Advertiser. If Advertiser defaults in the payment of an Invoice or if, in the sole judgment of Funnelwide, Advertiser’s credit becomes impaired, Funnelwide shall have the right to require payment for any future advertising to be upon such terms as Funnelwide may deem appropriate.
Advertiser shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with these Terms, except for income taxes.
Funnelwide does not claim ownership of any Content Advertiser makes available through the Service. At Funnelwide’s sole discretion, such Content may be included in the Service in whole or in part or in a modified form. With respect to such Content Advertiser submits or makes available for inclusion through the Service, and Advertiser’s registered and unregistered trademarks, service marks, trade dress, graphics or logos (
Licensed Marks), Advertiser grants Funnelwide a perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully paid-up and non-exclusive license to use, copy, distribute, publicly perform, display, modify, create derivative works, and sublicense such materials or any part of such materials in any of the following:
The parties acknowledge and agree that the copyright, and all other right, title and interest, in and to the Articles written by Funnelwide shall remain with Funnelwide and Advertiser shall have no rights therein unless Funnelwide otherwise grants Advertiser rights in a separate writing; and the copyright, and all other right, title and interest, in and to Advertiser’s Content shall remain with Advertiser and Funnelwide shall have no rights therein except as set forth in these Terms or unless Advertiser otherwise grants Funnelwide rights in a separate writing. Advertiser shall supply all Content to Funnelwide in such formats and as otherwise consistent with Funnelwide’s current and prevailing specification requirements.
- on the Site or any Funnelwide blog, newsletter or other communication or business development, sales or press release materials,
- as any part of the Service;
- on any third-party website in connection with the Service, and
- in any other reasonable manner that Advertiser might expect Funnelwide to use such Content and Licensed Marks.
Proprietary Rights; Use Restrictions
The Service and all data and information generated thereby are and shall at all times remain the sole and exclusive property of Funnelwide and are protected by applicable intellectual property laws and treaties. All data and other information related to the Site or collected by way of the Service on any website shall be the sole property of Funnelwide. Advertiser acknowledges that Advertiser does not acquire any ownership rights in or to the Service or such data.
Notwithstanding anything to the contrary, Advertiser may not:
- remove any proprietary notices from the Service;
- cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service;
- sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other entity without the prior written consent of Funnelwide; or
- make any false, misleading or deceptive statement or representation regarding Funnelwide and/or the Service.
Advertiser agrees that for each of Advertiser’s websites and/or software product(s) that use the rights granted herein, such website’s terms and conditions will include terms to ensure that the Service and any data and other information generated thereby shall be at least as protected as:
- Advertiser’s own proprietary software applications, and
- such materials are protected by these Terms.
Funnelwide hereby grants Advertiser a personal, limited, non-exclusive, non-transferable, fully-paid license to use the marks, graphics, logos, designs, page headers, button icons, scripts, and service names comprise registered and unregistered trademarks, service marks and trade dress of Funnelwide in the U.S. and/or other countries (the
Funnelwide Marks) in conjunction with Advertiser’s use of the Service on any pages of Advertiser’s websites or affiliate websites that feature any aspect of the Service. Advertiser may publish blog posts on Advertiser’s blog or affiliate blogs that include the use of Funnelwide Marks at any time without additional authorization by Funnelwide, provided that Advertiser makes reasonable efforts to send the blog post to Funnelwide prior to or concurrent with publishing thereof. Nothing in these Terms grants Advertiser ownership or any rights in or to use the Funnelwide Marks, except in accordance with this license. Under no circumstances may Advertiser disparage or otherwise abuse the Funnelwide Marks, nor violate any of these Terms. The rights granted to Advertiser in this license will terminate upon any termination or expiration of these Terms and Advertiser will no longer make any use of any Funnelwide Marks.
The Site and the Service and the content made available through the Site and the Service are protected by U.S. and international copyright laws. Except for Advertiser’s use of the content in connection with the Service to which Funnelwide has the appropriate licensing rights or as authorized in these Terms, Advertiser may not use, modify, reproduce or distribute any of the content, or the design or layout of the Site or the Service, or individual sections of the content, design or layout of the Site without Funnelwide’s express prior written permission.
Accounts and Security
Advertiser represents that it has the legal capacity to enter into a contract in the jurisdiction of its formation or where it resides.
To access the Service, Advertiser must create an account by completing the registration process on the Site. By registering, Advertiser will have the ability to control certain settings for the Service. Depending upon which Services Advertiser selects, Advertiser may be required to supply contact and other information.
Maintaining account security is very important. Advertiser is entirely responsible for maintaining the confidentiality of Advertiser’s account password. Advertiser agrees to notify Funnelwide immediately if it believes that an account password may have been compromised. Advertiser may not share or transfer any account.
Cancellation by Advertiser.
Advertiser shall have the right to cancel any account registered to it at any time. Advertiser may cancel any account registered to it by sending a request to cancel its account to email@example.com.
Termination by Funnelwide.
Funnelwide reserves the right to deny service to any person and to reject any Content in Funnelwide’s sole and absolute discretion for any reason. The Service is offered with the understanding that Funnelwide may terminate any account registered to Advertiser and/or Advertiser’s access to the Service at any time, for any reason or no reason, including without limitation for any violation of these Terms or for rejecting amendments made by Funnelwide to these Terms. Funnelwide may stop offering and/or supporting the Service or any portion thereof at any time.
Effect of Account Cancellation or Termination.
If Advertiser voluntarily terminates an account or allows that account to lapse, it may reactivate that account at any time through the account interface on the Site. Accounts terminated by Funnelwide for any type of abuse, including without limitation a violation of these Terms, may not be reactivated for any reason. Upon cancellation or termination (whether by Advertiser or Funnelwide), all amounts due to Funnelwide hereunder from Advertiser shall become immediately due and payable. Advertiser acknowledges and agrees that Funnelwide may continue to service any Campaign which is active at the time of cancellation or termination for up to seventy-two (72) hours following such cancellation or termination, and that Advertiser will be responsible for all fees incurred during such period.
Restrictions and Conditions of Use
Use of Site and Service.
As a condition of use, Advertiser acknowledges and agrees that Advertiser may not use the Service for any purpose not reasonably intended by Funnelwide. Advertiser agrees not to license, create derivative works from, transfer, sell or re-sell any information, content, software or services obtained from the Site. Funnelwide reserves the right to add or remove information, Content or Services from the Site at any time at its sole discretion.
No Violation of Laws.
Advertiser agrees that it will not, in connection with its use of the Site or the Service, violate any applicable law or regulation. Without limiting the foregoing, Advertiser agrees that it will not make available through the Site or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
Misuse of the Site and the Service.
Advertiser may not connect to or use the Site or the Service in any way not expressly permitted by these Terms. Without limiting the foregoing, Advertiser agrees that it will not:
Furthermore, Advertiser may not use the Site or Service to develop, generate, transmit or store information, including any Content that, or use the Service on any website, that:
- institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site or the Service or otherwise attempt to disrupt the Site or the Service or any other person’s use of the Site or the Service;
- attempt to gain unauthorized access to the Site, Service, accounts registered to other users, or the computer systems or networks connected to the Site or the Service;
- use the Site or the Service for any illegal or unauthorized purpose;
- use the Site or the Service to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Funnelwide user;
- use the Service to submit stories or comments linking to multi-level marketing schemes; or
- use the Service with the intention of artificially inflating, deflating or altering the Service, including by way of creating separate user accounts for the purpose of artificially altering Funnelwide’s services; artificially inflating clicks on display links on Advertiser’s registered websites to paid third-party Content (
Promoted Content) or participating in any other organized effort that in any way artificially alters the results of the Service.
Funnelwide may remove any Content from the Site and Service for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), at any time.
- is defamatory, harmful, abusive, obscene or hateful;
- in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site or the Service;
- performs any unsolicited commercial communication not permitted by applicable law;
- constitutes harassment or a violation of privacy or threatens other people or groups of people;
- is harmful to children in any manner;
- violates any applicable law, regulation or ordinance;
- makes any false, misleading or deceptive statement or representation regarding Funnelwide or the Service;
- constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias);
- displays adult, obscene, pornographic, libelous, infringing, abusive, inflammatory or defamatory content;
- participates in, or encourages participation in, illegal activities;
- promotes hate or discrimination; or
- facilitates the sale of firearms or illegal drugs.
No Data Mining or Harmful Code.
Advertiser agrees that it will not
- obtain or attempt to obtain any information from the Service, including without limitation email information of other account holders;
- intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or
- use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or the Service.
Advertiser agrees not to
In the event Funnelwide determines that Advertiser has engaged in any of the foregoing, Funnelwide may, in its sole discretion and as a non-exclusive remedy, charge Advertiser a one-time fee of $1,000 as liquidated damages (the
- fraudulently redirect any end user, including but not limited to
- through the unauthorized use of a third party’s proprietary rights, copyrights, trademarks, or service marks in URLs,
- through the use of false or misleading URLs, or
- through the use of “ghosting”, “cloaking”, or “doorway pages” methods; or
- engage in any other illegal or fraudulent business practices.
Liquidated Damages Amount), and/or suspend or terminate Advertiser’s account. Advertiser agrees that Funnelwide has the right to withdraw the funds in its account (up to the Liquidated Damages Amount) to make up for the loss suffered by Funnelwide due to a breach of this Section 7.5. Advertiser acknowledges that the Liquidated Damages Amount is not a penalty for breach of this Section 7.5 and actual damages likely to result from breach of this Section 7.5 are difficult to estimate on the Effective Date of these Terms and would be difficult for Funnelwide to prove. The parties estimate and intend that Advertiser’s payment of the Liquidated Damages Amount is within the range of compensation for any loss that would be suffered by Funnelwide due to a breach of this Section 7.5 and would serve to compensate Funnelwide for any breach by Advertiser of its obligations under this Section 7.5, and Funnelwide does not intend for Advertiser’s payment of the Liquidated Damages Amount to serve as punishment for any such breach.
- fraudulently redirect any end user, including but not limited to
Advertiser agrees that Funnelwide may use its name, Licensed Marks and logo, or otherwise refer to Advertiser, in its marketing materials and websites as part of a list of its customers, and in any advertisement, news release or other publication of Funnelwide for the purpose of publicizing the Service and/or Funnelwide’s relationship with Advertiser.
The Site and the Service are operated by Funnelwide in the United States. Those who choose to access the Site and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
Disclaimer of Warranties.
Advertiser acknowledges that Funnelwide has no control over, and no duty to take any action regarding: which users gain access to the Service; what effects the Service may have on Advertiser, its website or equipment; the accuracy or how it may interpret, rely, or use the Service including without limitation any loss of reputation or loss of traffic on its website or any website of any of Advertiser’s affiliates; or what actions Advertiser may take as a result of having been exposed to the Service. Advertiser further acknowledges and agrees that Funnelwide shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, or reliance on, any Content, goods or services available on or through any third-party website linked or referred to by any portion of the Service. Advertiser releases Funnelwide from all liability with respect to the Service, and any Content or data provided or accessed via the Service or through the Site. The Site may contain, or direct visitors to websites containing, information that some people may find offensive or inappropriate. Funnelwide makes no representations concerning the Content contained in or accessed via the Service or the Site, including without limitation Promoted Content, and Funnelwide will not be responsible or liable for the contents, accuracy, copyright compliance, legality or decency of third party Content or services accessed via the Service or the Site or for Advertiser’s reliance on any of the foregoing. Funnelwide does not make any representation, warranty or guarantee of the quantity or quality of traffic that Advertiser will receive under these Terms.
Additionally, Funnelwide does not make any representation, warranty or guarantee of the quantity or quality of Clicks that Advertiser will receive under these Terms. Funnelwide will make commercially reasonable efforts to ensure that it does not charge for any fraudulent Clicks. Funnelwide does not, however, represent or warranty that there will be no fraudulent Clicks.
THE SITE AND SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR ADVERTISER’S USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. FUNNELWIDE MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FUNNELWIDE SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
ADVERTISER IS RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE AND THE SERVICE IS AT ADVERTISER’S SOLE RISK. FUNNELWIDE DOES NOT WARRANT THAT ADVERTISER WILL BE ABLE TO ACCESS OR USE THE SITE AND THE SERVICE AT THE TIMES OR LOCATIONS OF ADVERTISER’S CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- THE NUMBER OF PERSONS WHO WILL VIEW CONTENT, AND
- ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM DISPLAY OF CONTENT BY FUNNELWIDE.
ADDITIONALLY, FUNNELWIDE MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING FUNNELWIDE’S SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FUNNELWIDE SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING
- THE NUMBER OF PERSONS WHO WILL VIEW THE CONTENT OR THE ARTICLES AND
- ANY BENEFIT CLIENT MIGHT OBTAIN FROM DISPLAY OF THE CONTENT OR THE ARTICLES BY FUNNELWIDE.
Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FUNNELWIDE, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE
RELATED PARTIES) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE AND THE SERVICE, EVEN IF FUNNELWIDE OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF FUNNELWIDE OR ANY OF THE RELATED PARTIES EXCEED $100.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Funnelwide and its affiliates shall be limited to the fullest extent permitted by law.
Advertiser agree to indemnify, defend and hold Funnelwide and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees, resulting from or arising out of Advertiser’s use of the Site and/or the Service or any breach by Advertiser of these Terms or any other policies that Funnelwide may issue for the Site and/or the Service from time to time.
Governing Law; Jurisdiction.
These Terms are governed by, and will be construed under, the laws of the United States of America and the laws of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Subject to the provisions of Section 13, Advertiser agrees that any dispute arising out of or related to these Terms and/or its use of the Site and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles, California, and Advertiser agrees to submit to the personal jurisdiction and venue of such courts. Advertiser hereby waives any objection that Advertiser may now or hereafter have to the venue of any such suit or any such court or that such suit was brought in an inconvenient court.
Advertiser and Funnelwide agree that, except as provided in Section 13.4 below, all disputes, controversies and claims related to these Terms (each a
Claim), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the
JAMS Rules) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 13 and the JAMS Rules, the terms in this Section 13 will control and prevail.
Except as otherwise set forth in Section 13.4, either party may seek any remedies available to them under federal, state or local laws in an arbitration action. As part of the arbitration, both Advertiser and Funnelwide will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms,
- Advertiser and Funnelwide may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and
- the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, ADVERTISER UNDERSTANDS THAT ADVERTISER AND FUNNELWIDE WAIVE THE RIGHT TO SUE IN COURT.
The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
Advertiser and Funnelwide agree that any arbitration shall be limited to the Claim between Funnelwide and Advertiser individually. ADVERTISER AND FUNNELWIDE AGREE THAT
- THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES;
- THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND
- NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
Exceptions to Arbitration.
Advertiser and Funnelwide agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration:
In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
- any Claim seeking to enforce or protect, or concerning the validity of, any of Advertiser’s or Funnelwide’s intellectual property rights;
- any Claim related to, or arising from, allegations of theft, piracy or invasion of privacy; and
- any claim for equitable relief.
If Advertiser initiates arbitration for a Claim, Advertiser will need to pay the JAMS arbitration initiation fee. If Funnelwide initiates arbitration for a Claim, Funnelwide will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
Advertiser and Funnelwide agree that if any portion this Section 13 is found illegal or unenforceable (except any portion of Section 13.4), that portion shall be severed and the remainder of this Section 13 shall be given full force and effect. If Section 13.4 is found to be illegal or unenforceable then neither Advertiser nor Funnelwide will elect to arbitrate any Claim falling within that portion of Section 13.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and Advertiser and Funnelwide agree to submit to the personal jurisdiction of that court.
Confidential Informationshall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. Neither Advertiser nor Funnelwide shall disclose or use the other party’s Confidential Information for any purpose other than the purposes contemplated by these Terms, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party’s Confidential Information to the extent required by applicable law, but only after five (5) days prior written notification to the other party of such required disclosure. Upon termination, cancellation or expiration of these Terms for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed. Advertiser’s Confidential Information shall remain the property of Advertiser, and Funnelwide’s Confidential Information shall remain the property of Funnelwide.
Funnelwide may revise these Terms at any time, and the new versions will be available on the Site. If at any point Advertiser does not agree to any portion of these Terms, it must immediately stop using the Site and/or the Service.
Advertiser agrees that no joint venture, partnership, employment, or agency relationship exists between Advertiser and Funnelwide as a result of these Terms or Advertiser’s use of the Service.
Funnelwide may assign these Terms or any Insertion Order, in whole or in part, to any person or entity at any time with or without Advertiser’s consent. Advertiser may not assign these Terms or any Insertion Order without Funnelwide’s prior written consent, and any unauthorized assignment by Advertiser shall be null and void.
If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of these Terms shall be given full force and effect.
In the event any litigation or arbitration is brought by either party in connection with these Terms, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation or arbitration.
Funnelwide’s failure to enforce any provision of these Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by Funnelwide of any provision, condition or requirement of these Terms shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
All notices given by Advertiser or required under these Terms shall be in writing and addressed to: Funnelwide, Inc., 1453 3rd Street Promenade, Suite 300, Santa Monica, CA 90401.
Advertiser will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations.
Advertiser hereby agrees that Funnelwide would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore agrees that Funnelwide shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms, in addition to such other remedies as Funnelwide may otherwise have available under applicable laws.
These Terms, including the documents expressly incorporated by reference, constitute the entire agreement between Advertiser and Funnelwide with respect to the Site and/or the Service and supersede all prior or contemporaneous communications, whether electronic, oral or written, between Advertiser and Funnelwide with respect to the Site and/or the Service.