Terms & Conditions - Paid Advertisement
The following "Terms and Conditions" (the "Terms") supplement the order form ("Order Form") executed between nSphere ("Company") and the Advertiser identified on the Order Form ("Advertiser") and all other order forms subsequently executed by the parties. Terms not defined herein have the meanings set forth in the Order Form. The Terms and the OrderForm together are referred to as the "Agreement." Agreement shall become effective on receipt of the signed Order Form from Advertiser.
1. Terms of Payment. Payment terms are defined on the Order Form. If Advertiser disputes any charge, Advertiser must notify the Company in writing within 30 days from the invoice date relating to such charge; failure to so notify the Company shall result in waiver by Advertiser of any claim relating to the disputed charge. Except as expressly set forth in the Order Form, all orders are non cancelable. Company is entitled to recover any sums expended in connection with the collection of amounts not paid when due, including reasonable attorneys' fees. In the event of non-payment of amounts due, Company reserves the right to resell to a third party, space on the web page allocated to the Advertiser.
2. Renewal. Except as set forth in the Order Form, any renewal of the Order Form, acceptance of any additional advertising order, and pricing for any renewal period shall be at the mutual agreement and acceptance of the parties.
3. Company's Representations. Company represents and warrants that it has the right to list its directories on the web page of the third party publisher identified on the Order Form ("Publisher").
4. Advertiser Representations. Advertiser represents and warrants that the materials provided by Advertiser hereunder, any content on websites that such materials link to, and Advertiser's products and services do not violate any applicable law, regulation or ordinance or any third party right. Advertiser acknowledges that the Company has no responsibility to review Advertiser's materials and that the listing will be linked to third party media service providers and shall be subject to such third party media service provider's terms. Advertiser further represents and warrants that it has the right to license to, and hereby grants Company, its licensees and the third party media service providers, a non-exclusive, worldwide, transferable, royalty-free right and license to Advertiser's intellectual property rights. This license is limited to allowing nSphere to fulfill to purposes contemplated by this agreement and nSphere will make no other use of, and makes no other claim to Advertiser's intellectual property rights. Advertiser will provide all materials for listing and advertising in accordance with these Terms and Conditions and with Company's policies in effect from time to time including, without limitation policies regarding the manner of transmission to the Company and the time prior to publication of the listing. The Advertiser must provide complete and commercially reasonable creative content, consisting of a logo, Advertiser description and banner ad text (collectively, the “Listing Materials") in a format which complies with Company's requirements for such content, no later than fifteen (15) days prior to the scheduled commencement date of the publication of the listing. In the event that Advertiser fails to provide the Listing Materials to Company, then Company shall have the right to suspend Advertiser's Directory Listing until such time as Advertiser provides the Listing Materials. Such suspension shall have no effect on the Term of the listing, which shall continue to run during such suspension. Company shall also have the right to create the Listing Materials for Advertiser, and may charge Advertiser areasonable fee for such service, such fee not to exceed $150. Company may refuse the use of any advertisement that it deems inappropriate. Advertiser recognizes that the Company has proprietary relationships with third-party publishers which provide advertising inventory to the Company, and Advertiser agrees not to solicit, induce, recruit or encourage, directly or indirectly, any publisher that is known to Advertiser to be a client of the Company, for purposes of offering products or services that are competitive with the Company, during the term of this Agreement and for 90 days thereafter.
5. Use of Data. Subject to applicable law, Company shall have the right to use and disclose all data provided by the Advertiser that is derived from the listing set forth in the Order Form, for any purpose related to Company's business. Company may disclose such data (i) for general reporting purposes, including the compilation of statistics, that may be provided to existing and potential customers, (ii) for scheduling and optimization of content delivery across all directories, including websites, networks, and any other advertising inventory that the Company reaches, and (iii) if required by court order, law or governmental agency. We provide the information to trusted partners who work on behalf of or with nSphere underconfidentiality agreements. These companies may use your personal information to help nSphere communicate with you about offers from nSphere and our marketing partners. However, these companies do not have any independent right to share this information.
7. Limitation of Liability. COMPANY'S SERVICES AND SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE", AND THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE AND ALL WARRANTIES RELATING TO THE RESULTS OF ADVERTISING PURCHASED HEREUNDER. EXCEPT FOR ADVERTISER'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, IN NO EVENT SHALL EITHER PARTY'S LIABILITY EXCEED THE TOTAL AMOUNT PAID TO THE COMPANYBY ADVERTISER HEREUNDER. The Company shall not be liable for the contents of any advertisements, websites or web pages. In the event that the Company fails to display any listing in accordance with the Order Form (or in the event of any other failure, technical orotherwise), the sole liability of the Company shall be limited to placement of "make-good" advertising during a reasonable time thereafter. Except for obligations arising under Section8 as a result of a third party claim, in no event shall either party be responsible for any indirect, incidental, consequential, special, lost profits, or exemplary damages arising from any aspect of the advertising relationship provided herein. Without limiting the foregoing, the Company shall have no liability for any failure or delay resulting from conditions beyond the Company's control.
8. Indemnification. (a) Each party (each, in such capacity, the "Indemnifying Party") shall indemnify the other party and its respective officers, directors, employees and agents (each, in such capacity, an "Indemnified Party" and, collectively, the "Indemnified Parties"), from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from a breach by the Indemnifying Party of this Agreement or of any representation, warranty, covenant or agreement contained herein.(b) Advertiser agrees to indemnify and hold the Company and its officers, directors, agents, website affiliates and employees harmless against any and all damages incurred by them in connection with any claim of any kind arising out of or relating to (a) publication or use of any material or content supplied by or approved by Advertiser for use hereunder (including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, false or deceptive advertising or sales practices, consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity);or (b) any material to which users can link through such materials or content.(c) Any claim for indemnification hereunder shall be further subject to the following provisions: (x) the indemnifying party shall be given written notice of the claim within 15 days of receipt of the demand by the indemnified party; (y) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim; and (z) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel.
9. Miscellaneous. Advertiser may not resell, assign or transfer any of its rights hereunder. Publisher is a third party beneficiary to this Agreement. Without limiting the foregoing provisions, Advertiser hereby grants Company the right to display Advertiser's listing(s) on third party publisher sites not set forth in any Order; provided, however, that Advertiser shall not be charged for the display of its listing(s) on such third party publisher sites not listed in an Order Form or not otherwise requested or approved by Advertiser. No conditions other than those set forth in the Agreement shall be binding on the Company unless expressly agreed to in writing by the Company. In the event of any inconsistency between the Order Form and the Terms and Conditions, the Order Form shall prevail. All contents of advertisements are subject to Company's sole approval. Except as expressly set forth in an Order Form, Company reserves the right in its sole discretion to reject, cancel or remove at any time, whether before, during or after commencement of an advertising flight, any advertisement, execution of an Order Form, space reservation or position commitment. The Agreement (i) shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to principles of conflicts law; (ii) may be amended only by written agreement executed by an authorized representative of each party; and (iii) constitutes the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties, with respect to the subject matter hereof. The parties irrevocably consent to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and state and federal courts situated therein in connection with any action arising between the parties. If any provision of the Agreement is held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of the Agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by a party of any default or breach of this agreement by the other party shall not constitute a waiver of any other or subsequent default or breach.