This is a Yelp advertiser agreement that I received from a source. I’ve removed elements that might identify the source or the salesperson.
ADVERTISING TERMS AND CONDITIONS
AD IMPRESSIONS PROGRAM AND ENHANCED PROFILE PROGRAM
These Advertising Terms and Conditions (the “Terms”) are entered into by and between Yelp! Inc., a Delaware corporation (“Yelp”) and the Client identified below, and govern the terms of Client’s participation in Yelp’s advertising program on the Yelp’s websites, mobile applications, and other properties (the “Site”). The Terms are effective as of the date that you send this email to Yelp (“Effective Date”), and that as the signer of this Agreement, you represent that you are authorized to sign on behalf of and bind the Client to the obligations under the Agreement. The Agreement (including its Purchase Order) becomes void if not accepted within the calendar month in which the Agreement was sent to Client by Yelp (“Agreement Expiration Date”).
Client Name and Address:
[X] Enhanced Profile Program
[X] Ad Impression Program: 500 ad impressions per month
[X ] Video hosting*: USD 50.00 per month
– Total Fees: $[redacted] per month
– Payment type: Client to pay in advance by credit card
– Payment Frequency: Monthly
– Payment Currency: USD
– Service start date: [redacted]
– Commitment period:12 months from service start date
– Renewal: month to month
– Early termination fee: $1000
– Yelp salesperson: [redacted]
* Yelp has engaged a third party video production company to produce your business video. If applicable, Yelp will conditionally waive the one-time cost of the video production fee of $300 per video if Client purchases Ad Impressions Program with a Commitment Period of 12 months or longer. If Client downgrades within the Commitment Period to a non-Video hosting program, a shorter Commitment Period of six (6) months or less, or an Enhanced Profile Program, Client will be charged by and pay to Yelp $300 per video for the video production fee.
I. Advertising Account
Yelp will establish an advertising account enabling Client to purchase advertising services (“Yelp Ads”) that Yelp makes available to Client from time to time in connection with Yelp’s websites, mobile applications, and other properties, including properties set forth in a Purchase Order (“Site”). Each such purchase will be set forth in a purchase order agreed to in writing by both parties which sets forth the Yelp Ads being purchased, applicable fees, the duration of the advertising commitment (the “Commitment Period”), renewal terms, and the date that advertising will commence, among other information (“Purchase Order”). Each Purchase Order is governed by and incorporated into the Terms, and any conflict between them will be resolved in favor of the Purchase Order. Client’s initial Purchase Order is attached to these Terms
II. Yelp Ads
Yelp Ads encompass a range of different advertising programs.
The “Enhanced Profile Program” allows Client to access premium features in connection with its business profile page, such as competitive ad removal, photo slideshow, and dedicated account support. As it develops new advertising features, Yelp may from time to time replace any of the foregoing features with features of substantially similar value.
The “Ad Impression Program” directs Yelp to make commercially reasonable efforts to deliver a specified number of ad impressions to the Site per month. An “ad impression” is a single display of an advertisement on the Site which incorporates content provided by Client and/or the Site’s users.
The optional “Video Hosting Feature” allows Client to display a video on its business profile page, subject to Yelp’s video hosting specifications.
The “Cost-Per-Click Ad Program” (for eligible Clients only) directs Yelp to make commercially reasonable efforts to deliver a variable but unguaranteed number of ad impressions (as defined in the Terms), at its sole discretion, based on available inventory and other factors. Fees for the variable Cost-Per-Click Ad Program are based on the number of “ad clicks” rather than the number of “ad impressions” displayed. An “ad click” occurs when a Site user clicks on an ad impression.
A Purchase Order may contain additional Yelp Ad products available for eligible businesses.
III. Fees and Payment
Client will pay Yelp the fees specified in each Purchase Order for the duration of its term. All fees are solely based on Yelp’s measurement for the applicable Yelp Ad, including the measurement of all clicks and ad impressions, unless otherwise agreed to in writing by the parties. The fees are fixed for the duration of the commitment period specified in the applicable Purchase Order, but may be modified by Yelp thereafter by providing one month’s prior written notice to Client. The fees are net of any taxes Client may be required to pay in its taxing jurisdiction. Payments are due in advance of the period for which they apply, or as otherwise set forth in the Purchase Order. Unpaid amounts or errors may be billed in subsequent invoices. If Client’s payment method fails or Client’s account is past due, Yelp may collect past due amounts using other collection mechanisms, and Client agrees to pay all expenses associated with such collection, including reasonable attorneys’ fees.
IF CLIENT PROVIDES YELP WITH CREDIT CARD, DEBIT CARD, OR BANK ACCOUNT INFORMATION, CLIENT AUTHORIZES YELP TO USE SUCH PAYMENT INFORMATION TO AUTOMATICALLY CHARGE CLIENT ON A RECURRING BASIS TO COLLECT ALL FEES DUE HEREUNDER. CLIENT REPRESENTS THAT HE OR SHE IS AUTHORIZED TO INCUR CHARGES AGAINST THE PAYMENT CARD USED TO PURCHASE YELP ADS. THE FORM OF PAYMENT CANNOT BE CHANGED OR ALTERED UNLESS ALL AMOUNTS DUE UNDER THE TERMS HAVE BEEN PAID IN FULL OR OTHERWISE AGREED TO BY THE PARTIES IN WRITING.
IV. Representations and Warranties
Each party represents and warrants to the other that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized; all contact and entity information is complete, correct and current, and the execution and delivery of the Terms, and the performance of the transactions contemplated hereby, are within its corporate powers, and have been duly authorized by all necessary corporate action.
Client represents and warrants to Yelp that any information or materials that Client provides in connection with Yelp Ads (“Advertising Materials”) will (a) be true and complete, (b) not contain any material which violates Yelp’s content guidelines or which is otherwise unlawful, defamatory or obscene, or which infringes or violates any third-party rights (including any intellectual property rights or privacy or publicity rights) or which may encourage a criminal offense or otherwise give rise to civil liability and (c) comply with all applicable laws and regulations in its performance of the Terms (including all applicable privacy / data protection laws and regulations and laws related to Promotions). “Promotions” are any contest, sweepstakes, coupon or other promotion appearing on or promoted through the Site by Client. Yelp reserves the right to reject or remove any Advertising Materials at its sole discretion, and to alter any Advertising Materials to conform to technical specifications.
Client further represents and warrants to Yelp that Client will not, and will not authorize or induce any other party, to: (x) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions; (y) use any automated means or form of scraping or data extraction to access, query or otherwise collect Yelp content and reviews from the Site, except as expressly permitted by Yelp or (z) use any Yelp trademarks in any manner without Yelp’s prior written consent. All rights not expressly granted to Client hereunder are reserved by Yelp.
V. Information About and Use of the Site
The Site allows consumers to post reviews about businesses like Client’s. The Site employs automated software to help it showcase the most relevant and reliable reviews while suppressing others. Client’s purchase of Yelp Ads will not influence the automated software, or otherwise allow or enable Client, directly or indirectly, to remove, alter or reorder the reviews on the Site.
Yelp disclaims all liability arising from Yelp’s access to Client’s account on Client’s behalf in order to make changes or post information to the Site (“Client Instructions”). It is Client’s responsibility to confirm that Client Instructions are executed as requested. Client’s use of the Site, including any use by someone else acting on Client’s instructions, is governed by the Terms of Service posted here: http://www.yelp.com/static?p=tos (“TOS”). Any conflicts between these Terms and the TOS will be resolved in favor of the TOS.
Each Purchase Order will expire at the end of the Commitment Period unless (i) otherwise terminated earlier under these Terms or (ii) the Purchase Order contains a renewal period that automatically extends the term of the Purchase Order beyond the Commitment Period (collectively the “PO Term”). Client must provide written notice (an email to Client’s assigned Yelp account representative is permissible) to terminate a Purchase Order on or before the 15th day of the month in order for the Purchase Order to terminate at the end of that month. If Client provides written notice after the 15th day of the month, then the Purchase Order will terminate at the end of the following month. Unless otherwise terminated as provided under the Terms, the Terms will automatically expire three (3) months after the termination or expiration of the last surviving Purchase Order.
IF CLIENT TERMINATES A PURCHASE ORDER BEFORE THE END OF THE COMMITMENT PERIOD, CLIENT AGREES TO PAY ANY AND ALL EARLY TERMINATION FEES SET FORTH IN THE PURCHASE ORDER(S), RECOGNIZING THAT YELP BEARS CERTAIN UP-FRONT COSTS, AND THAT THERE IS AN IMPLIED PRICING DISCOUNT BASED ON THE LENGTH OF CLIENT’S CHOSEN COMMITMENT PERIOD.
Yelp may terminate any Purchase Order or the Terms at any time for any or no reason without liability, effective immediately, by providing written notice to Client. In the event of such termination, Client will immediately pay all unpaid Yelp Ad fees through the date of termination, and Yelp will reimburse any fees that were prepaid for Yelp Ads to be rendered after the date of such termination.
VII. YELP’S DISCLAIMER OF WARRANTIES
CLIENT ACKNOWLEDGES AND AGREES THAT YELP ADS ARE PROVIDED TO CLIENT ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. YELP MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE YELP ADS AND EXPRESSLY DISCLAIMS THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. FURTHERMORE, TO THE FULLEST EXTENT PERMITTED BY LAW, YELP SPECIFICALLY DISCLAIMS ALL WARRANTIES AND GUARANTEES REGARDING (I) THE PERFORMANCE, QUALITY AND RESULTS FOR THE SERVICE, (II) CLICK RATES, CONVERSIONS OR OTHER PERFORMANCE OR RESULTS FOR THE SERVICE, (III) THE ACCURACY OF THE INFORMATION THAT YELP PROVIDES IN CONNECTION WITH THE SITE OR YELP ADS (E.G. REACH, SIZE OF AUDIENCE, DEMOGRAPHICS OR OTHER PURPORTED CHARACTERISTICS OF AUDIENCE), (IV) YELP’S ABILITY TO TARGET ADS TO OR IN CONNECTION WITH SPECIFIC USERS, TYPES OF USERS, USER QUERIES, OR OTHER USER BEHAVIORS, (V) THE ADJACENCY OR PLACEMENT LOCATION OF YELP ADS, AND (VI) AN AD IMPRESSION’S QUALITY, TIMING OR THE NUMBER OF AD IMPRESSIONS DELIVERED. YELP SHALL NOT BE LIABLE FOR NON-PERFORMANCE DUE TO CAUSES BEYOND ITS REASONABLE CONTROL.
VIII. LIMITATIONS OF LIABILITY
THIRD PARTIES MAY INADVERTENTLY OR FOR FRAUDULENT OR IMPROPER PURPOSES GENERATE AD IMPRESSIONS OR CLICKS (“INVALID CLICKS”), WHICH MAY IMPACT THE FEES YOU PAY YELP AND THE PERCEIVED EFFECTIVENESS OF YELP ADS. CLIENT ACCEPTS THE RISK OF INVALID CLICKS WITHOUT LIABILITY TO YELP. AS SUCH, THE PARTIES AGREE THAT YELP HAS NO LIABILITY FOR CLAIMS ARISING FROM OR IN CONNECTION WITH INVALID CLICKS EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY LAW, IN WHICH CASE YELP’S MAXIMUM LIABILITY AND CLIENT’S EXCLUSIVE REMEDY IS A REFUND IN THE FORM OF ADVERTISING CREDITS.
YELP’S MAXIMUM LIABILITY AND CLIENT’S EXCLUSIVE REMEDY IN THE EVENT OF ANY (A) UNDER-DELIVERY IN ANY GIVEN MONTH, OR (B) AD IMPRESSIONS OR CLICKS THAT ARE INADVERTENTLY GENERATED BY YELP, AS DETERMINED BY YELP, IS, AT YELP’S SOLE DISCRETION, FOR YELP TO EITHER (I) DELIVER THE SHORTFALL OF IMPRESSIONS IN SUBSEQUENT MONTHS OR (II) PROVIDE A REFUND OF THE OVERCHARGED AMOUNT, EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY LAW.
FOR ALL OTHER CLAIMS ARISING FROM OR IN CONNECTION WITH A PURCHASE ORDER, YELP ADS, OR THE TERMS THAT ARE NOT EXPRESSLY ADDRESSED IN THIS SECTION TITLED “LIMITATIONS OF LIABILITY”, YELP’S MAXIMUM LIABILITY AND CLIENT’S EXCLUSIVE REMEDY IS THE AGGREGATE FEES PAYABLE TO YELP HEREUNDER DURING THE SPECIFIED COMMITMENT PERIOD EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
NEITHER PARTY NOR ITS AFFILIATES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS OR REVENUE, OR INTERRUPTION OF BUSINESS) ARISING OUT OF OR RELATED TO A PURCHASE ORDER, THE YELP ADS, THE SITE, OR THESE TERMS, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Client will indemnify, defend, and hold Yelp and its officers, directors, agents, and employees harmless from and against any and all claims, actions, losses, damages, liabilities, costs and expenses (including but not limited to attorneys’ fees and court costs) (collectively a “Third Party Claim”) arising out of or in connection with (i) the Advertising Materials, Client Instructions, or Client’s use of Yelp Ads, (ii) any breach of representations or warranties provided under these Terms by Client in Section IV, (iii) any Promotion, including any claims for any violation by the Promotion of any applicable law, rule or regulation, (iv) Client’s products or services or the provision thereof to end users or (v) if applicable, failure to obtain the consent from all parties to recorded phone calls originating from the Tracking Numbers if you have enrolled in the Pay-Per-Call Program. Yelp will notify Client promptly of any Third Party Claim for which it seeks indemnification and will permit Client to control the defense of such Third Party Claim with counsel chosen by Client; provided, that Client will not enter into any settlement that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of Yelp without Yelp’s prior written consent.
X. Choice of Law and Arbitration
(a) Any claim, controversy or dispute arising out of or relating to the Terms (“Claim”) will be exclusively governed by California law consistent with the Federal Arbitration Act without regard to conflict of law provisions or giving effect to any principles that may provide for the application of the laws of another jurisdiction.
(b) All Claims must be exclusively and finally resolved and settled by final and binding arbitration administered by and in accordance with the rules of the American Arbitration Association (“AAA”) before a single arbitrator who is a member of the AAA. Arbitrations will be held in San Francisco, California, but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitrator will issue a ruling in writing, and will detail all findings of fact and law upon which the ruling was made. The arbitrator will not have the power to commit errors of law or legal reasoning, and the ruling may be vacated or corrected on appeal to a court of competent jurisdiction for such errors. The arbitrator’s ruling will otherwise be final and binding on all parties, and may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, any dispute as to the enforceability of this arbitration provision or its applicability to a specific Claim shall be adjudicated by a state or federal court located within San Francisco County, California (“Court”), and not by an arbitrator.
(c) THE TERMS MUST BE CONSTRUED AS IF THEY WERE JOINTLY WRITTEN BY BOTH PARTIES. CLIENT AND YELP AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH CLIENT AND YELP AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SUBSECTION (C), AND THIS SUBSECTION (C) IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
Notwithstanding anything to the contrary in these Terms, Yelp may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
(a) The Terms and its exhibits are expressly limited to and made conditional upon Client’s acceptance of its terms and conditions before the Expiration Date. Any of Client’s terms or conditions which are in addition to or different from those contained in or added by way of interlineation to the Terms or any Purchase Order as originally provided to Client by Yelp which are not separately expressly agreed to in writing by both parties are deemed material and are hereby objected to and rejected by Yelp. No conditions, printed or otherwise, appearing on other contracts, orders or copy instructions which conflict with, vary, or add to these Terms will be binding on Yelp, and any conflicting or additional terms contain in any other documents or oral discussions are void. The Terms embody the entire and exclusive agreement between the parties respecting the subject matter of herein, and supersede any and all prior related oral, emailed or written representations and agreements between the parties. No statements or promises by either party have been relied upon in entering into these Terms, except as expressly set forth herein.
(b) Anyone agreeing to the Terms on behalf of Client represents and warrants that it has full legal power and authority to enter into these Terms, perform its obligations hereunder, and authorize the fee payments set forth in the Purchase Order(s).
(c) Notices under these Terms must be in writing and sent via facsimile, registered or certified mail or commercial courier to the parties at their respective addresses set forth herein, and in the case of Yelp, to the attention of its General Counsel at 706 Mission Street, San Francisco, California, 94103.
(d) The Terms may not be amended or modified except as agreed upon in writing by the parties. No provision in the Terms may be waived, except pursuant to a writing executed by the party against whom the waiver is sought to be enforced. Client may not assign any rights or obligations under the Terms without Yelp’s prior consent, and any purported assignment by Client shall be void. If any provision of the Terms is held to be invalid or unenforceable, the parties will substitute for the affected provision a valid or enforceable provision that approximates the intent and economic effect of the affected provision. Sections VII, VIII, IX, X and XI of the Terms will survive any termination of the Term.