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Online Search Services Agreement

  1. Welcome! We are pleased to provide the marketing services you’ve selected on your Plan Page. These services are collectively referred to in this Agreement as the Online Search Services. If there is a reason to refer to them individually, this Agreement will use the name given to them on the Plan Page. For ease of reference, eBridge Marketing Solutions, Inc. is referred to in this Agreement as we, us or our. Our customer is referred to as customer, you or your. Our customer’s customer, or ultimate target of the Online Search Services, is referred to as the end user. Third party services incorporated into the Online Search Services are referred to as Third Party Services. This Agreement incorporates our Plan Page and Privacy Policy by reference, unless they are referred to individually by their names in this Agreement.
  2. How to order Online Search Services from Us.
    1. You purchase the Online Search Services from us by choosing from the list of available services in your account (Plan Page). The Plan Page is your request to pay us for Online Search Services pursuant to this Agreement or your affiliate marketing program. We are not required to provide them until we approve your request. We will contact you to let you know that we will provide the services to you. The Effective Date of this Agreement is the date you submit the Plan Page to us.
    2. Your account is for your use only. You may not authorize others to use it, and you may not assign or transfer it to any other person or entity. We are entitled to rely on passwords as authorization to modify submissions, and our other methods of verification as identifying the owner of an account.
  3. How the Online Search Services Work.
    1. The Online Search Services allow you to list your website and other services (submissions) in the search results generated by our site in response to search terms populated by end users. The content of your submissions contains keywords and other content relevant to your business. End results are based on the search criteria ranked by end users, and not on a pay per click, or other financial basis.
    2. The technical parameters of the Online Search Services and how they will be delivered are set out on the Plan Page. These parameters may be modified from time to time. You may only cancel the Online Search Services to the extent such a modification materially interferes with your use. Your submissions are subject to our approval, and that of those providing the Third Party Services. These submissions, and any aspect of them, may be rejected or modified for any reason. We will provide you with notice of any rejection; however, we will not do so should we modify your submissions for technical reasons.
    3. You grant to us, and the providers of Third Party Services, a non-exclusive, worldwide, fully paid license to use, reproduce and display the submissions in any way associated with the Online Search Services in accordance with this Agreement. You will retain ownership of, and responsibility for, the content of any submissions. We, and our Third Party Service providers, will retain any rights associated with the Online Search Services or Third Party Services. You will have no interest in our intellectual property or that of our Third Party Service providers. You agree not to adopt or attempt to register any intellectual property that is confusingly similar to ours, or to register our name, or any variation thereof, as a domain name.
    4. You are responsible for your submissions.
      1. The Online Search Services are an advertising platform allowing you to market your services to end users who use self-selection criteria to search for services. While the Online Search Services contain fields allowing you to include, or not to include, content, you are solely responsible for all creative, advertising trafficking and marketing decisions, selection parameters, urls, landing pages, and other related aspects of your submissions.
      2. Your submissions may not include any information that casts any individual or entity, or its products or services, in a manner that is false, misleading, derogatory, defamatory, offensive or harassing, or contains adult material or material that is illegal in the United States. In particular, the submissions may not contain:
        1. Material targeted at individuals under eighteen (18) years of age;
        2. A free trial offer that requires purchase to redeem or is subject to terms and conditions that are not displayed on the submission in a clear and legible manner;
        3. A sweepstakes, contest, lottery or game of chance;
        4. Audio that is not muted when the submission is displayed;
        5. Nudity or provocative language; or
        6. Material, other than an industry-approved cookie, that is installed, or may be installed on an end user’s computer regardless of whether the end user consents to such installation.
      3. Your submission may only include the intellectual property of a third party if you have a valid license to use it in conjunction with the Online Search Services. If you don’t have a valid license to use this material, you may not submit it to us, even if your use would be within the definition of “fair use,” nor may you “frame” or otherwise cause this information to be displayed using the Online Search Services. If you link to another place on the Internet, that link may not lead to the information set out in the prior sentence.
      4. Your submission may only include the intellectual property of a third party if you have a valid license to use it in conjunction with the Online Search Services. If you don’t have a valid license to use this material, you may not submit it to us, even if your use would be within the definition of “fair use,” nor may you “frame” or otherwise cause this information to be displayed using the Online Search Services. If you link to another place on the Internet, that link may not lead to the information set out in the prior sentence.
    5. Display of your content using the Online Search Services is generated by end users. While we hope that your use of the Online Search Services is successful, we make no guarantees that the Online Search Services will generate any particular results, nor do we represent or warrant the amount or quality of traffic that may be delivered to you.
    6. Our goal is to maintain the Online Search Services as set out in this Agreement. To do so, we may need to interrupt them from time to-time for maintenance. We agree to give you seven (7) business days’ notice of our intent to suspend the Online Search Services for this reason. We will provide this notice to you by email. Our notice will, at a minimum, set out the reasons for the maintenance, the features to be affected, and the period of time the maintenance will take place. On infrequent occasions, we may be required to undertake emergency maintenance, and we will be unable to provide you with the notice set out in this paragraph. We will use reasonable efforts to ensure that maintenance does not interfere with your operations; however, in order to ensure the continued stability of our network, our maintenance activities will take precedence over your operations.
    7. Compensation.
      1. When you create an account, you must provide us with a “Tracking Code.” This Tracking Code is unique to you. Each time an end user chooses your products it will be submitted to you. All payments will be made based on clicks or revenue generated as determined by our tracking or your affiliate tracking.
      2. You agree to pay us the fees we quote you for the Online Search Services.Packages will be charged based on the number of end user clicks. If your records indicate a different number of clicks, you agree to provide us with information sufficient for us to review your statistics. If the parties are unable to resolve their dispute within thirty (30) days, either may pursue its remedies at law. You may cancel paid packages by providing us with notice set out in this agreement. l.xiii.
      3. If fees are to be paid to us, the due date is the date set out on our invoice. If your payment method fails, or your account is past due, we reserve the right to suspend, or terminate, the Online Search Services. Fees charged by us do not include taxes. If we are required to collect taxes, you agree to pay them. We will not charge you taxes based on our income. You agree to pay these charges regardless of the length of time that may have passed. Neither party may offset against amounts due the other payments to be made under this Agreement. Past due payments will accrue interest at 1.5% per month, or the highest amount allowed by law. Should we be required to collect past due fees, you agree to pay our collection costs and reasonable attorneys’ fees. Any fee disputes must be submitted to us no more than fifteen (15) days following the due date. If not submitted within that period, the dispute is waived.
      4. Unless the Plan Page contains a term, either party may terminate this Agreement upon notice. Upon termination, any Commissions due us will become immediately due and payable. However, if you terminate this Agreement, or any Online Marketing Service that has a term commitment, then you are responsible for all Fees to be charged by us for the remainder of the term. You agree that you are responsible for these Fees since our commitment to provide the Online Search Services for a set period of time required us to commit assets to your account, and that such a payment is a fair allocation of our costs, and not a penalty. To terminate this Agreement, or any individual aspect of the Online Search Services, either party will give written notice to the other at the address set out in paragraph [l.xiii.].
      5. You agree to indemnify and hold us and our officers, directors, agents, affiliates and employees harmless from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including without limitation reasonable attorneys’ fees) resulting from claims or actions arising out of or in connection with (i) your participation in our program, (ii) your websites or any links from your websites, (iii) any libel, defamation, 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 your websites, (iv) any breach by you of any duty, representation, or warranty under any agreement with us, or (v) a contaminated file, virus, worm, or Trojan horse emanating from your websites. You are solely responsible for defending any claim, and for payment of damages or losses resulting from the foregoing to both a third party and to us.
      6. Each party warrants to the other that it has the power, authority and legal right to enter into this Agreement and to perform the obligations set out in the Agreement, and pursuant to any provisions or agreements incorporated into the Agreement.
      7. You warrant that you either own, or have licensed the right to use, the submissions and any technology you place on our network. You agree to provide us with evidence of these licenses or rights on our reasonable request, and to procure similar warranties from your end users. In particular, you represent and warrant that the material placed on, or transmitted through, the Online Search Services do not infringe any third party patent, copyright, trademark or trade secret right, and that you have used commercially reasonable efforts to ensure that the material is free from viruses and is not being placed on our Online Search Services to enable access to them by parties other than you.
      8. NOTWITHSTANDING ANY ORAL OR WRITTEN COMMUNICATIONS BETWEEN US AND YOU ABOUT OR IN CONNECTION WITH THE ONLINE MARKETING SERVICES, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, NEITHER WE NOR ANY OF OUR EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS, SUBCONTRACTORS OR LICENSORS MAKE ANY WARRANTIES OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, NON-INTERRUPTION, NON-INTERFERENCE, NON-INFRINGEMENT, OR THAT THE ONLINE MARKETING SERVICES ARE COMPLETELY SECURE OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE ONLINE MARKETING SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS.
    8. Our Liability is Limited
      NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY MAKING A CLAIM BASED ON OUR PROVIDING THE ONLINE MARKETING SERVICES TO YOU FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES; (IV) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE). THIS LIMITATION APPLIES EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER TYPE OF DAMAGES OTHER THAN DIRECT DAMAGES. OUR MAXIMUM LIABILITY SHALL BE ONE THOUSAND (1,000) U.S. DOLLARS. IF THIS DISCLAIMER IS PROHIBITED BY THE LAW GOVERNING THIS AGREEMENT, OUR LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT ALLOWED BY THAT LAW.
    9. We Each Agree to Keep Certain Information Confidential.
      1. The term “Confidential Information” includes, but is not limited to, a party’s inventions, trade secrets, customer information, business plans, designs, programs, product or marketing data, customer lists and histories, sources of supply, production plans, financial statements, pricing data, test results, business strategies, manuals, materials, systems, financial information, non-public methods, processes and techniques, this Agreement (other than the Privacy Policy), any information marked “Confidential,” and all other non-public business and technical information, whether related to past, present or future products and services.
      2. Each of the parties agrees that if one party (“Disclosing Party”) provides Confidential Information to the other party (“Receiving Party”), that Confidential Information shall be held in confidence, and the Receiving Party shall give the Confidential Information the same care and protection as it gives generally to its own confidential and proprietary information, but no less than reasonable care, in order to avoid disclosure to, or unauthorized use by, any third party. All Confidential Information, unless otherwise specified in writing, shall remain the property of the Disclosing Party, and shall be used by the Receiving Party only for its intended purpose. All Confidential Information, including all copies of it, shall be either returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired, or upon the request of the Disclosing Party, each at the option of the Disclosing Party. The provisions of this paragraph shall not apply to any Confidential Information which: (i) becomes publicly available, other than through disclosure by the Receiving Party; (ii) is required to be disclosed by any governmental authority, applicable law, or by court order; (iii) is independently developed by the Receiving Party; (iv) becomes available to the Receiving Party without restriction from a third party; or (v) becomes relevant to the settlement of any dispute or enforcement of either party’s rights under this Agreement. If any Confidential Information is required to be disclosed based on this paragraph, the party required to make such a disclosure shall, where legally permitted, immediately inform the other party of the requirements of such a disclosure to enable the Disclosing Party to take protective measures to preserve the confidentially of such Confidential Information as fully as possible in the context of such a permitted disclosure. It is not a violation of this paragraph for the Receiving Party to disclose Confidential Information to its employees or agents, its legal, financial and accounting advisors, and to its lenders which need to know that Confidential Information, provided that it notifies any recipient of the confidential and proprietary nature of any Confidential Information so disclosed.
    10. Compliance with Laws.
      Each party agrees that it will obtain and maintain all permits, licenses or certificates that are required by any regulatory body for the provision or use of the Online Search Services. Each party will comply with all applicable laws in performing its obligations, and exercising its rights under this Agreement.
    11. Flow down. You agree to include provisions no less protective of our rights, and the privacy interests of our users, in your agreements with your own customers.
    12. General Provisions.
      1. Neither you nor any End Users may remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Online Search Services or products used to provide the Online Search Services.
      2. Our TOU shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada in force therein without regard to its conflict of law rules. All parties agree that by agreeing to our TOU they have attorned to the jurisdiction of the Supreme Court of British Columbia which shall have exclusive jurisdiction over this Agreement. To the fullest extent permitted by applicable law, you waive and agree not to assert, as a defense or otherwise, (i) any claim that it is not subject to the jurisdiction (in person or otherwise) of any such court, (ii) any objection that it may now or hereafter have to the laying of venue in any such court or (iii) any claim that any suit, action or proceeding has been brought in an inconvenient forum.
      3. In the event of any dispute arising between the parties concerning our TOU, its enforceability or the interpretation thereof, the same shall be settled by a single arbitrator appointed pursuant to the provisions of the Commercial Arbitration Act of British Columbia, or any successor legislation then in force. The place of arbitration shall be Vancouver, British Columbia. The language to be used in the arbitration proceedings shall be English.
      4. Nothing herein shall prevent a party hereto from applying to a court of competent jurisdiction for interim protection such as, by way of example, an interim injunction
      5. This Agreement may only be amended in writing upon agreement of the parties, except that the technical parameters set forth on the Plan Page may be modified from time to time as set forth in paragraph 3.b
      6. The fact that one party fails to exercise, partially exercises, or delays exercising a right, remedy or power available to it in this Agreement is not a waiver or preclusion of a right to do so in the future. The waiver by a party of time for performance, or extension of the time to do so, shall not constitute a waiver of the act or condition itself.
      7. Either party may assign this Agreement to an affiliate if the original signatory to the Agreement remains fully responsible for the rights and obligations of the affiliate. Otherwise, you may only assign this Agreement with our written consent. However, the Online Search Services may be performed by our corporate subsidiaries, its agents or subcontractors, without your consent. Any other attempt to assign, without written consent, shall be null and void. This Agreement shall be binding upon and inure to each party’s benefit and to the benefit of their respective successors and permitted assigns.
      8. Should a particular provision be held to be illegal or unenforceable in any jurisdiction, that provision shall be effective except to the extent of such illegality or unenforceability, without invalidating the remaining provisions, and the provision at issue shall be restated to reflect the original intentions of the parties, to the greatest extent possible, and in accordance with the law. Section, paragraph and other titles are for ease of reference only, and they are not considered to be part of this Agreement.
      9. This Agreement, together with all documents incorporated by reference, states the entire agreement between the parties. Except for pre-existing obligations of confidentiality, non-disclosure and non-competition, with respect to the subject of this Agreement, it supersedes all previous proposals, negotiations and other written or oral communications between the parties.
      10. This Agreement is the result of negotiations between equally-situated parties. Each party has had the ability to protect their legal and other interests, and have had, and do have, a full and complete opportunity to review, analyze, evaluate, negotiate, edit and draft the terms of this Agreement. Accordingly, this Agreement shall not be strictly construed or enforced against any party, and any ambiguity in any term or condition contained in this Agreement shall not be interpreted in favor of one party and against another party, based upon any rule of construction whose premise is draftsmanship of this Agreement or up on the relative bargaining position of the parties.
      11. If there is a conflict between the terms of this Agreement, Plan Page, and Privacy Policy, they shall have the following precedence: Privacy Policy, Plan Page and Agreement.
      12. The parties are independent contractors. Under no circumstances will either party have the authority to make any representations, claims or warranties of any kind on behalf of the other party, its affiliates, agents, subcontractors, licensors or third-party suppliers.
      13. Any aspect of this Agreement may be executed in two or more counterparts. The counterparts will be considered to be an original, and, together, shall constitute the same document. The parties may exchange signatures by facsimile. The parties shall consider facsimile signatures to be original signatures, and they agree to be bound by these signatures as though they were original signatures.
      14. The rights and obligations of the parties set out in this Agreement that would by their nature or context be intended to survive the expiration or termination of this Agreement, shall survive. In particular, but without limiting the preceding sentence, the parties’ rights and obligations under the following sections of this Agreement shall survive: 3(d), (g), (h), (i) and (l)
      15. All other notices that are required, permitted or necessary under this Agreement must be in writing, and they are deemed to have been received on the earlier of: (i) actual receipt; (ii) the date of receipt set out on any indication of delivery (other than facsimile or email confirmation); or (iii) on the fourth business day after being deposited in a governmentally-operated postal service, and addressed as below. Parties may provide notice by facsimile and/or email, as long as such notice is followed by a written notice as set out above. All notices, requests, consents and other communications shall be delivered to:

        If to us:
        eBridge Marketing Solutions Inc.
        4620 Teviot Place
        North Vancouver, BC V7R 4M5
        Canada

        Fax: (425) 645-4332
        Email: info@searchhostingvendors.com