PhoneDog Web Services - Terms & Conditions
Terms and Conditions for PhoneDog Content Programs
These Terms and Conditions govern your participation in PhoneDog’s content program(s).
1. Defined Terms. The following words shall have the meanings stated below when used in these Terms and Conditions:
“clickthrough” means a click by an end user on a Link;
“Content Program” means the PhoneDog content program in which you are enrolled, such as the Affiliate Program, PriceView, API - Web Services, or Data Feed.
“end user” means a user of the Partner Website(s);
“Link” means a link to a PhoneDog Site or a Vendor site embedded in a graphic or other piece of information made available as part of the Affiliate Program.
“PhoneDog” means PhoneDog, LLC a Delaware limited liability company;
“PhoneDog Site” means the web site at www.phonedog.com or other url controlled by PhoneDog.
“PhoneDog Trademarks” means PhoneDog’s name, logos, trademarks, service marks, and other identifiers associated with PhoneDog and its services in the market;
“Vendor” means the provider of the telecommunications product and/or services that are marketed via the Content Program;
“Partner Website(s)” means one or more websites operated by you and approved by PhoneDog for participation in the applicable Content Program; and
“you” or “your” means the individual or legal entity approved by PhoneDog for participation in the Content Program.
2. Program License. Subject to the terms of this Agreement, and contingent on PhoneDog’s approval of your application to participate in the applicable Content Program, PhoneDog authorizes you to do the following for the purpose of soliciting orders from end users for those Vendor products and services are included in the Content Program:
- Affiliate Program: place one or more of the Links provided by PhoneDog on the Partner Website(s);
- PriceView Program: place one or more PriceView Code(s) on the Partner Website(s);
- API - Web Services: use the application program interface provided by PhoneDog to present PhoneDog’s content on the Partner Website; or
- Data Feed: display on the Partner Website the pricing and other data provided by PhoneDog via its daily data feed;
(a) Amount. For each order for eligible Vendor products and/or services placed through the Content Service that originates from your Website via a clickthrough and is accepted and fulfilled by the Vendor, PhoneDog will pay you a fee in the amount stated in its online materials. Certain products/services included on the PhoneDog Site do not generate revenue to PhoneDog and are not, therefore, eligible for fees as part of the Content Program. PhoneDog’s obligation to pay a fee to you is contingent on its actual receipt of the corresponding commission payment from the Vendor in respect of the related sale to the end user. PhoneDog may change the amount of the fees or remove a product’s eligibility for fees at any time on ten (10) days advance notice to you. You agree to pay all applicable taxes and other government charges in connection with your participation in the Content Program.
(b) Subsequent Orders by Same End User. PhoneDog will pay you a fee for a second or subsequent order(s) placed by an end user as part of the same clickthrough visit to a Vendor site, provided that the order is otherwise eligible for compensation as described above. Orders placed during subsequent visits by the same end user (i.e., visits not originating via a clickthrough) are not eligible for compensation, although PhoneDog may, at its option, track and compensate such orders via a cookie if the Vendor supports PhoneDog’s tracking procedure.
(c) Payment Procedures. PhoneDog will mail you a check via first class United States mail to the then current address shown on its records no later than the last day of the calendar month following the calendar month in which PhoneDog receives the corresponding commission from Vendor. There will likely be a lag time of at least 60 to 90 days between the date of the end user order and PhoneDog’s payment of the fee to you. You are responsible for keeping your account information accurate and up to date, and any bank fees or other expense incurred by PhoneDog resulting from inaccurate account information may be deducted from your payment. PhoneDog may hold fees until the aggregate amount due to you is at least $50.00. Payments will be made in United States dollars only. You must notify PhoneDog of any fee dispute within one year of the related order date or the payment (or lack of payment) shall be deemed conclusively accurate. Upon termination of your participation in the Content Program, PhoneDog will mail you your final fee payment within 120 days after the effective date of termination, provided such payment is at least $100.00. (If your final payment is less than $100.00, PhoneDog will keep the money.)
(d) Chargebacks. PhoneDog may charge back any fee paid to you for a sale that is subsequently charged back, returned, or otherwise cancelled or reversed by the Vendor for any reason, or may require you to refund the fee.
(e) Tax Forms. PhoneDog shall not be required to make any payments to you until you have provided a completed IRS Form 1099 and/or other appropriate tax forms to PhoneDog.
5. PriceView Code Customization. If you are an approved PriceView program participant, you may use the online account Setup page to generate and customize PriceView Code. You may post up to two PriceView units per page on your Partner Website.
6. Use of Content Program Elements. You may not use any element of the Content Program or any information provided to you via the Content Program separately from the other elements of the Content Program except as authorized by PhoneDog. You may not post any element of the Content Program, such as a Link or PriceView Code in an e-mail, software program, or any place other than a Partner Website. You may not modify the Content Program or any element of the Content Program other than as expressly permitted by this Agreement or the online program policies on the PhoneDog Site. You must comply with PhoneDog’s specifications posted on its online program policies or otherwise communicated to you for the placement, appearance and operation of the Links, PriceView Code and other elements of the Content Program, including replacing any outdated Links, PriceView Code or other element with new versions that may be released by PhoneDog. You may not modify or filter the clickthrough results. The Content Program and each element of the Content Program (including information provided via the API – Web Services program and clickthrough results) are licensed to you for your limited use subject to the terms of this Agreement and PhoneDog retains all rights to Content Program. In addition to the confidentiality obligations stated in Section 16 below, you must limit disclosure of the PriceView Code within your organization only to those individuals with a need to know the content of the PriceViewCode to implement your participation in the PriceView program. The Content Program (including the clickthrough results) are protected by United States and international copyright law and treaties. PhoneDog may modify the appearance of the clickthrough results at any time in its sole discretion.
7. Participant Requirements. You must meet all of the following requirements, both as of the date of your application to participate in the Content Program, and during the entire time that you are a participant:
- API – Web Services participants must display a “Powered by PhoneDog” logo prominently on the Partner Website and include a link to the PhoneDog Website on each page of the Partner Website that displays the API data;
- PriceView participants’ Partner Websites must have significant content related to telecommunications products and services other than the PriceView program;
- Each page on the Partner Website that contains a PriceView Code must also contain other non-advertising content related to the Partner Website;
- The Partner Website may not contain content that is illegal or offensive to PhoneDog in PhoneDog’s reasonable discretion (e.g. racial intolerance, excessively violent, pornography, sale or promotion of infringing goods or services, sale of certain weapons; drug paraphernalia, gambling, tobacco, hacking/cracking content, etc.);
- You may not be a spammer, or be affiliated with a spammer, as determined by PhoneDog in its reasonable discretion;
- The quality and operation of the Partner Website must be consistent with or better than ordinary commercial standards as determined by PhoneDog in its reasonable discretion (no in appropriate redirects, excessive key words, hidden links, excessive links, etc.);
- You (and your employees) may not use the Content Program in excess of the activity reasonably needed to manage the operation of the Partner Website. Each clickthrough must originate from an individual human;
- You may not offer the end user any premium or other incentive to purchase a telecommunications product or service via the Content Program;
- You must communicate only with PhoneDog, and not any Vendor, regarding the Content Program;
- You must cooperate with PhoneDog’s reasonable investigation of any matter related to your participation in the Content Programs, including providing information that PhoneDog may reasonably request in a prompt and diligent manner;
- You may not modify or interfere in any way with the ordinary display of the PhoneDog Site or any Vendor webpage accessed by clicking on Link, PriceView Code clickthrough result, or other element of the Content Program, or intersperse any content or other webpage or Internet site in between the click and the PhoneDog Site or Vendor webpage, including by framing PhoneDog or Vendor pages, re-directing end users to other sites, or showing “pop up” advertisements;
- You may not display or use the Links, PriceView Codes, clickthrough results, or other elements of the Content Program in a way that is deceptive or misleading to end users;
- You must comply with applicable laws and regulations in connection with your participation in the Content Programs;
- You must meet any other eligibility criteria posted online by PhoneDog.
8. Use Limitations. PhoneDog’s standard Content Programs are not intended for use by large organizations or Partners who generate significant traffic. PhoneDog may limit the number of calls made from the Partner Website on its API data, in its discretion. If your Partner Website generates more traffic than appropriate for the Content Program, PhoneDog may require you to enter into a different licensing arrangement than the one described in these Terms and Conditions.
9. PhoneDog Marks. You may not use PhoneDog’s Trademarks except as they are included in the Links, as they are displayed by PhoneDog on your Web Pages with the clickthrough results, and as may otherwise be specifically authorized in writing in advance by PhoneDog. Any use of the PhoneDog Marks that is authorized (either by the Agreement or subsequently) shall be subject to PhoneDog’s reasonable usage guidelines, including the placement and appearance of the Marks, and may be revoked at any time in PhoneDog’s sole discretion. Your use of the PhoneDog Marks shall inure to the benefit of PhoneDog.
10. Approval. PhoneDog may reject your application for participation in any Content Program in its sole discretion including for your failure to comply with the Participant Requirements stated in Section 7 above.
11. Suspension/Termination. You may suspend your participation in a Content Program by simply removing the Links, PriceView Code or other program element from your Website(s). If you suspend your participation in the Content Program for more than (90) consecutive days, PhoneDog may deem the Agreement terminated and require to you to re-apply to begin participating in Content Program again. PhoneDog may from time to time suspend serving clickthrough results via a Content Program as necessary to perform maintenance on its systems, in which case a clickthrough will return no viewable output. PhoneDog may terminate the Content Program or your participation in the Content Program at any time, with or without cause, on notice to you; provided that termination without cause shall not terminate PhoneDog’s obligation to pay you any fees in respect of orders placed prior to the effective time of termination. On termination of this Agreement, you must stop using the Content Program and all information provided to you via the Content Program.
12. Representations and Warranties. You represent and warrant all of the following to PhoneDog: (i) all of the information you provide to PhoneDog in connection with the Content Program (including information provided as part of your application to participate in the program and all account information) is complete and accurate; (ii) if you are an individual, you are at least eighteen years of age; and (iii) neither you nor any company affiliated with you has been the subject of any spamming or slamming investigation by any governmental authority.
13. Publicity. Unless you advise PhoneDog to the contrary in a written notice, PhoneDog may use your name and logo in its publicity materials in connection with the Content Program, including on the PhoneDog Website.
14. Warranty Disclaimer
PHONEDOG’S SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS. PHONEDOG DOES NOT WARRANT THAT THE CONTENT PROGRAMS WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PHONEDOG DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THIS AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM VIRUSES OR OTHER HARMFUL ELEMENTS, ACCURACY, RELIABILITY, AVAILABILITY, NON-INFRINGEMENT, AND TIMELINESS. YOU ARE SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN FOR YOUR PURPOSES.
PHONEDOG MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING WHETHER THE VENDORS WILL ACCEPT OR ACCURATELY PROCESS ORDERS. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF ANY VENDOR TELECOMMUNICATIONS PRODUCTS AND SERVICES. AS BETWEEN PHONEDOG, YOU, AND YOUR END USERS, ALL TELECOMMUNICATIONS GOODS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
15. Limitations of Liability. You and PhoneDog each acknowledge that the other party has entered into this Agreement (and with respect to PhoneDog, approved your participation in the Content Program) in reliance on the limitations on liability stated below and that these limitations are an essential basis of the Agreement between you and PhoneDog.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR INFRINGEMENT ON THE OTHER PARTY’S INTELLECTUAL PROPERTY, NEITHER YOU NOR PHONEDOG SHALLBE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE BY THE DAMAGED PARTY, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY PUNITIVE OR EXEMPLARY DAMAGES.
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, THE MAXIMUM AGGREGATE LIABILITY OF PHONEDOG AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED AMOUNTS DUE AN UNPAID UNDER THIS AGREEMENT PLUS FIVE HUNDRED DOLLARS ($500.00).
17. Notices. Notices under this Agreement must be given by e-mail to the email contact listed in your account, or for PhoneDog, to infodog@ phonedog.com. Notices will be deemed given, received and accepted on transmission, provided that if the transmission time is outside of normal business hours for PhoneDog ( 9:00 a.m. – 5:00 p.m. Eastern Time, excluding weekends and holidays), the notice shall be effective as of the time that business hours first begin after the transmission of the notice.
18. Transferability. You may not assign the agreement without PhoneDog’s prior written consent. If you sell or transfer your Website, the new owner must apply to PhoneDog to participate in the Content Program.
19. Miscellaneous. Except for modifications to the Content Programs that PhoneDog may make from time to time as described above, the Agreement may not be modified except by a written document signed by both parties. If any provision of the Agreement is held to be unenforceable, the remainder of the Agreement shall not be affected, and the unenforceable provision shall be reformed to the extent necessary to make the provision enforceable. The parties are independent contractors and not partners or joint venturers. PhoneDog has no obligation to audit Vendor payments, pursue collection efforts against Vendors or take any other action to collect Vendor commissions. PhoneDog may use any feedback or other information you provide to PhoneDog in connection with the Content Programs for the purpose of improving its services and you agree that PhoneDog will have a non-exclusive, fully paid, transferable, perpetual and irrevocable right to use any such information. A party’s failure to require performance of any term of the Agreement shall not affect a party’s right to require performance at a later time, nor shall a waiver of any breach or default of the Agreement constitute a waiver of any subsequent breach or default. The PriceView Codes and any other software included with the Content Programs are commercial computer software developed solely at private expense. The rights of civilian and non-civilian agencies of the U.S. Government to use, disclose and reproduce such software are governed by these Terms and Conditions. The use of the word “including” in these Terms and Conditions shall be read to mean “including without limitation.” If you are located outside the United States, then the following provision applies: Les parties aux présentés conferment leur volonté que cette convention de même que tous les documents y compris tout avis qui shy rattaché, soient redigés en langue anglaise. (Translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language.")
20. Applicable Law, Venue. The Agreement is governed by the laws of the State of South Carolina, U.S.A. This license is not governed by the United Nations Convention of Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. You agree to submit to the jurisdiction of courts sitting in the State of South Carolina for all purposes. Sole and exclusive venue for any dispute arising under or relating to this agreement shall be in a court sitting in Dorchester County, South Carolina.
These Terms and Conditions together with the online materials posted by PhoneDog for the applicable Content Program are the complete and exclusive agreement between you and PhoneDog regarding your participation in the Content Programs and supersede and replace all other prior or contemporaneous agreements, understandings and communications.