YOUR ACCEPTANCE OF THIS AGREEMENT: This is an
agreement between you ("you" or
"your") and PERSIANCITY.COM
("PERSIANCITY.COM," "Persian
City," "we," or
"our") that governs your use of the
PERSIANCITY.COM Web site ("Site" or
"Web site")." When you access or use
the Site in any way you agree to be bound by these Terms and
Conditions ("Terms").
CHANGES: We may periodically change the Terms and
the Site without notice, and you are responsible for checking these
Terms periodically for revisions. All amended Terms become effective
upon our posting to the Site, and any use of the site after such
revisions have been posted signifies your consent to the changes.
HOW YOU MAY USE OUR MATERIALS: We use a diverse
range of information, text, photographs, designs, graphics, images,
sound and video recordings, animation and other materials and effects
on the PERSIANCITY.COM Web site.
We provide the information, content or advertisements (which we
collectively call the "Materials") on the
PERSIANCITY.COM site FOR YOUR PERSONAL, NON-COMMERCIAL USE ONLY.
Accordingly, You may view, use, copy, and distribute the Materials
found on PERSIANCITY.COM Web sites for internal, noncommercial,
informational purposes only. You are prohibited from data mining,
scraping, crawling, or using any process or processes that send
automated queries to the PERSIANCITY.COM Web site. You may not use the
PERSIANCITY.COM Web sites to compile a collection of listings,
including a competing listing product or service. You may not use the
Site or any Materials for any unsolicited commercial e-mail. Except as
authorized in this paragraph, you are not being granted a license
under any copyright, trademark, patent or other intellectual property
right in the Materials or the products, services, processes or
technology described therein. All such rights are retained by
PERSIANCITY.COM, its subsidiaries, parent companies, and/or any third
party owner of such rights.
HOW YOU MAY USE OUR MARKS: The Persian City and
PERSIANCITY.COM company names and logos and all related products and
service names, design marks and slogans are trademarks and service
marks owned by and used under license from PERSIANCITY.COM or its
wholly-owned subsidiaries. All other trademarks and service marks
herein are the property of their respective owners. All copies that
you make of the Materials or this site must bear any copyright,
trademark or other proprietary notice located on the site that
pertains to the material being copied. You are not authorized to use
any PERSIANCITY.COM name or mark in any advertising, publicity or in
any other commercial manner without the prior written consent of
PERSIANCITY.COM . Requests for authorization should be made to info@persiancity.com.
HOW WE MAY USE INFORMATION YOU PROVIDE TO US: Do
not send us any confidential or proprietary information. Except for
any personally identifiable information that we agree to keep
confidential as provided in our Privacy Policy, any material,
including, but not limited to any feedback, data, answers, questions,
comments, suggestions, ideas or the like, which you send to us will be
treated as being non-confidential and nonproprietary. We assume no
obligation to protect confidential or proprietary information (other
than personally identifiable information) from disclosure and will be
free to reproduce, use, and distribute the information to others
without restriction. We will also be free to use any ideas, concepts,
know-how or techniques contained in information that you send us for
any purpose whatsoever including but not limited to developing,
manufacturing and marketing products and services incorporating such
information.
PRIVACY POLICY: Use of our Site is also subject to
the Terms and Conditions of our Privacy Policy. Our Site is intended for use primarily by
persons 18 years or older.
NO ENDORSEMENTS MADE BY PERSIANCITY.COM: We do not
investigate, represent or endorse the accuracy, legality, legitimacy,
validity or reliability of any products, services, deals, coupons or
other promotions ("Promotions") or Materials,
including advice, ratings, and recommendations contained on,
distributed through, or linked, downloaded or accessed from the
PERSIANCITY.COM Web sites.
References that we make to any names, marks, products or services
of third parties or hypertext links to third party sites or
information do not constitute or imply our endorsement, sponsorship or
recommendation of the third party, of the quality of any product or
service, advice, information or other materials displayed, purchased,
or obtained by you as a result of an advertisement or any other
information or offer in or in connection with the PERSIANCITY.COM Web
sites (the "Products").
CONTENT DISCLAIMER: PERSIANCITY.COM communicates information
provided and created by advertisers, content partners, software
developers, publishers, marketing agents, employees, users, resellers
and other third parties. PERSIANCITY.COM has no control over the
accuracy of such information on our pages, and material on the
PERSIANCITY.COM Web site may include technical inaccuracies or
typographical errors.
We make no guarantees, nor can we be responsible for any such
information, including its currency, content, quality, copyright
compliance or legality, or any resulting loss or damage.
All of the data on Products and Promotions including but not
limited to, the prices and the availability of any product or service
or any feature thereof, is subject to change without notice by the
party providing the Product or Promotion. You should use discretion
while browsing the Internet.
PERSIANCITY.COM reserves the right, in its sole discretion and
without any obligation, to make improvements to, or correct any error
or omissions in, any portion of the Sites. Where appropriate, we will
endeavor to update information listed on the Web site on a timely
basis, but shall not be liable for any inaccuracies.
Links to external Internet sites are provided within the content on
the Site as a convenience to users. The listing of an external site
does not imply endorsement of the site by PERSIANCITY.COM or its
affiliates. PERSIANCITY.COM does not make any representations
regarding the availability and performance of its Web site or any of
the Web sites to which we provide links. When you click on advertiser
banners, sponsor links, or other external links from the Site, your
browser automatically may direct you to a new browser window that is
not hosted or controlled by PERSIANCITY.COM. PERSIANCITY.COM and its
affiliates are not responsible for the content, functionality, or
technological safety of these external sites.
We reserve the right to disable links to or from third-party sites
to our Site, although we are under no obligation to do so. This right
to disable links includes links to or from advertisers, sponsors, and
content partners that may use our Marks as part of a co-branding
relationship.
Some external links may produce information that some people find
objectionable, inappropriate, or offensive. We are not responsible for
the accuracy, relevancy, copyright compliance, legality, or decency of
material contained in any externally linked Web sites. We do not fully
screen or investigate business listing Web sites before or after
including them in directory listings that become part of the Materials
on our Site, and we make no representation and assume no
responsibility concerning the content that third parties submit to
become listed in any of these directories.
WARRANTY DISCLAIMER: Any use of the
PERSIANCITY.COM Web site, reliance upon any Materials, and any use of
the Internet generally shall be at your sole risk. PERSIANCITY.COM
disclaims any and all responsibility or liability for the accuracy,
content, completeness, legality, reliability, or operability or
availability of information or material displayed in the
PERSIANCITY.COM results.
THE SITE (INCLUDING MATERIALS AND INFORMATION THEREIN) ARE PROVIDED
"AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY
KIND, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PERSIANCITY.COM DISCLAIMS, TO
THE FULLEST EXTENT PERMITTED UNDER LAW, ANY WARRANTIES REGARDING THE
SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE
SITE AND MATERIALS. PERSIANCITY.COM DOES NOT WARRANT THAT ANY DEFECTS
OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT IS FREE OF VIRUSES OR
OTHER HARMFUL COMPONENTS.
PERSIANCITY.COM DISCLAIMS ANY AND ALL WARRANTIES TO THE FULLEST
EXTENT OF THE LAW, INCLUDING ANY WARRANTIES FOR ANY INFORMATION,
GOODS, OR SERVICES, OBTAINED THROUGH, ADVERTISED OR RECEIVED THROUGH
ANY LINKS PROVIDED BY OR THROUGH THE SITE.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU
MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND
JURISDICTION TO JURISDICTION.
LIMITATION OF LIABILITY: IN NO EVENT SHALL
PERSIANCITY.COM BE LIABLE TO ANY USER ON ACCOUNT OF SUCH USER'S USE,
MISUSE OR RELIANCE ON THE SITE FOR ANY DAMAGES WHATSOEVER, INCLUDING
DIRECT, SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL
DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, USE, OR DATA WHETHER
BROUGHT IN WARRANTY, CONTRACT, INTELLECTUAL PROPERTY INFRINGEMENT,
TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, EVEN IF PERSIANCITY.COM
ARE AWARE OF OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE,
ARISING OUT OF OR CONNECTED WITH THE USE (OR INABILITY TO USE) OR
PERFORMANCE OF THE SITE, THE MATERIALS OR THE INTERNET GENERALLY, OR
THE USE (OR INABILITY TO USE), RELIANCE UPON OR PERFORMANCE OF ANY
MATERIAL CONTAINED IN OR ACCESSED FROM ANY SITE. PERSIANCITY.COM DOES
NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY,
COMPLETENESS, OR USEFULNESS OF ANY INFORMATION, APPARATUS, PRODUCT OR
PROCESS DISCLOSED ON THE SITE OR OTHER MATERIAL ACCESSIBLE FROM THE
SITE
THE USER OF THIS SITE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE
USE OF THIS SITE AND THE INTERNET GENERALLY.
THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE
OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST
EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY
OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY
NOT APPLY TO ALL USERS; IN SUCH STATES LIABILITY IS LIMITED TO THE
FULLEST EXTENT PERMITTED BY LAW.
THIRD PARTY SITES: Your correspondence or business
dealing with or participation in the sales promotions of advertisers
or service providers found on or through the Site, including payment
and delivery of related goods or services, and any other terms,
conditions, and warranties or representations associated with such
dealings, are solely between you and such advertisers or service
providers. You assume all risks arising out of or resulting from your
transaction of business over the Internet, and you agree that we are
not responsible or liable for any loss or result of the presence of
information about or links to such advertisers or service providers on
the Site. You acknowledge and agree that we are not responsible or
liable for the availability, accuracy, copyright compliance, legality,
decency or any other aspect of the content, advertising, products,
services, or other materials on or available from such sites or
resources. You acknowledge and agree that your use of these linked
sites is subject to different terms of use than these Terms, and may
be subject to different privacy practices than those set forth in the
Privacy Policy governing the Site. We do not assume any responsibility
for review or enforcement of any local licensing requirements that may
be applicable to businesses listed on the Site.
MONITORING OF MATERIALS TRANSMITTED BY YOU:
Changes may be periodically incorporated into this
Site. PERSIANCITY.COM may make improvements and/or changes in the
products, services and/or programs described in these Sites and the
Materials at any time without notice.
We are under no obligation to monitor the material residing on or
transmitted to this Site. However, anyone using this Site agrees that
PERSIANCITY.COM may monitor the Site contents periodically to (1)
comply with any necessary laws, regulations or other governmental
requests; (2) to operate the Site properly or to protect itself and
its users. PERSIANCITY.COM reserves the right to modify, reject or
eliminate any material residing on or transmitted to its Site that it,
in its sole discretion, believes is unacceptable or in violation of
the law or these Terms and Conditions.
DELETIONS FROM SERVICE: PERSIANCITY.COM will
delete any materials at the request of the user who submitted the
materials or at the request of an advertiser who has decided to
"opt-out" of the addition of materials to its advertising,
including, but not limited to ratings and reviews provided by third
parties. PERSIANCITY.COM reserves the right to delete (or to refuse to
post to public forums) any materials it deems detrimental to the
system or is, or in the opinion of PERSIANCITY.COM, may be,
defamatory, infringing or violate of applicable law. PERSIANCITY.COM
reserves the right to exclude Material from the Site. Materials
submitted to PERSIANCITY.COM for publication on the Site may be edited
for length, clarity and/or consistency with PERSIANCITY.COM Editorial
Standards.
INDEMNIFICATION: You agree to indemnify and hold
us and (as applicable) our parent, subsidiaries, affiliates, officers,
directors, agents, and employees, harmless from any claim or demand,
including reasonable attorneys' fees, made by any third party due to
or arising out of your breach of these Terms, your violation of any
law, or your violation of the rights of a third party, including the
infringement by you of any intellectual property or other right of any
person or entity. These obligations will survive any termination of
the Terms.
INTELLECTUAL PROPERTY COMPLAINTS: We do not make
it our responsibility to monitor the use of trademarks, copyrights or
other rights of third parties. We may, however, in appropriate
circumstances and at our discretion, remove, suspend, terminate
access, or take other appropriate action against users, members or
other third parties who infringe the copyright rights of
others. Therefore, if you reasonably believe that any Materials on
this Site contains unauthorized reproductions of your copyrighted work
or trademarks, or links to sites containing unauthorized reproductions
of your copyrighted work or trademarks, and you want us to take any
action, then you must provide the following information to us (as
required under the Digital Millennium Copyright Act (17
U.S.C. sec. 512)):
- A physical or electronic signature of a person authorized to act
on behalf of the owner of an exclusive right that is allegedly
infringed;
- Identification of the copyrighted work claimed
to have been infringed;
- Identification of the material that
is claimed to be infringing or to be the subject of infringing
activity and that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit us to
locate the material;
- Information reasonably sufficient to
permit us to contact you, such as an address, telephone number and
e-mail address;
- A statement that you have a good faith
belief that the use of the material in the manner complained of is
not authorized by the copyright owner, its agent or the law;
- A statement that the information in the notice is accurate, and
under penalty of perjury, that you are authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed.
Please e-mail this information to info@persiancity.com.
MISCELLANEOUS: These Terms will be governed by and
construed in accordance with the laws of the State of California,
without giving effect to its conflict of laws provisions or your
actual state or country of residence, and you agree to submit to
personal jurisdiction in San Francisco County, California. You agree
to exclude, in its entirety, the application to these Terms of the
United Nations Convention on Contracts for the International Sale of
Goods. You are responsible for compliance with applicable laws.
If for any reason a court of competent jurisdiction finds any
provision or portion of the Terms to be unenforceable, the remainder
of the Terms will continue in full force and effect.
These Terms constitute the entire agreement between us and
supersedes and replaces all prior or contemporaneous understandings or
agreements, written or oral, regarding the subject matter of these
Terms.
Any waiver of any provision of the Terms will be effective only if
in writing and signed by you and PERSIANCITY.COM. PERSIANCITY.COM
reserves the right to investigate complaints or reported violations of
these Terms and to take any action we deem necessary and
appropriate. Such action may include reporting any suspected unlawful
activity to law enforcement officials, regulators, or other third
parties. In addition, we may take action to disclose any information
necessary or appropriate to such persons or entities relating to user
profiles, e-mail addresses, usage history, posted materials, IP
addresses and traffic information. PERSIANCITY.COM reserves the right
to seek all remedies available at law and in equity for violations of
these Terms.
TERMS AND CONDITIONS FOR INTERNET ADVERTISING
Scope. This is a contract (referred to herein as
this "Agreement") between PERSIANCITY.COM (hereinafter
referred to as "us", "we" and "our") and
the customer ("you" and "your") identified on the
first page of this document (the "Order") for us to fulfill
your order for our Advertising Products identified on the Order. This
Agreement consists of the Order and these Terms and Conditions for
Internet Advertising, (these "Ts&Cs"). Except as
otherwise expressly provided in these Ts&Cs, in the event of any
conflict between the terms of the Order or of these Ts&Cs, the
Order shall control.
Term. The term of this Agreement commences on the
date of execution by you (either in writing or by electronic
signature, including recorded oral acceptance of this Agreement of an
Order presented by us and shall (subject to our right hereunder to
terminate or suspend our performance or remove Advertising Products
under circumstances specified in this Agreement) continue until we
have fulfilled the Advertising Products specified in the Order for the
Initial Term specified in the Order. Unless otherwise provided in the
Order and except as provided below in these Ts&Cs, upon expiration
of the Initial Term, the term of this Agreement shall automatically
renew for a "Renewal Term" unless you or we notify the other
of its intent not to renew at least thirty days before expiration of
the Initial Term. All services provided during the Renewal Term will
be subject to the then-current Terms and Conditions, pricing and other
terms for Internet Advertising available on our Web site (such then
current Ts&Cs being referred to herein as this Agreement). The
Renewal Term will continue from expiration of the Initial Term until
termination pursuant to this Agreement. Unless otherwise provided in
the Order, either you or we may terminate the Renewal Term, with or
without cause, upon thirty days' prior written notice to the
other. Neither of us may terminate this Agreement during the Initial
Term, provided that we may terminate this Agreement at any time upon
notice to you if you breach this Agreement. If you choose to have
your Advertising Products removed from any site and/or our services
discontinued prior to the end of the Initial Term or Renewal Term, as
the case may be, you shall notify us in writing and the unpaid balance
for the entire Initial Term or Renewal Term will become immediately
due and owing.
Third Parties. You represent and acknowledge that
you are entering into this Agreement to obtain the Advertising
Products for your own benefit and not for the benefit or on behalf of
any third party, including, but not limited to, any of your
shareholders, partners, owners, employees, agents or
affiliates. However, each of our distribution or fulfillment vendors
or internet search engines on which we place your advertising (each, a
"Distribution Site") is an intended third-party beneficiary
of your obligations hereunder that relate to Advertising Products and
may independently enforce each obligation directly against you.
Rates and Payment. Unless otherwise provided in
the Order, we will bill you during our first applicable billing cycle
after we fulfill your order for Advertising Products and will continue
to bill you during each applicable billing cycle thereafter during the
term of this Agreement. The billing cycle will be thirty (30) days
unless otherwise provided in the Order. We will bill you for
Advertising Products for which no rate is specified in the Order at
our standard rates for such Advertising Products at the time that we
provide such Advertising Products. Any rates specified in the Order
will apply during the Initial Term only. Unless you or we terminate
this Agreement at the end of the Initial Term, you will be invoiced
for each billing cycle of the Renewal Term at our standard rates
during such billing cycle for such Advertising Products. Such standard
rates may be higher than the rates set forth on the Order. Payments
are due on the due date specified on the invoice or, if no payment
date is specified, then thirty days after the date of the invoice. We
may remove, or (in the case of Advertising Products placed on
Distribution Sites) cause to be removed, your Advertising Products and
suspend our services hereunder if payment is not received by the due
date. Your prompt payment of any costs that we incur to suspend
services or remove or cause removal of Advertising Products, or to
resume services or replace or cause replacement of Advertising
Products, will be a condition to our resumption of services and the
replacement of Advertising Product. You acknowledge that no such
suspension or removal will extend the term of this Agreement and,
therefore, that it will reduce the aggregate time that we fulfill your
order. We may charge late payment fees that will accrue at our
then-current standard rates or, if lower, the maximum rate permitted
under applicable law. You agree to pay any attorneys' fees and costs
that our agents or we incur in collecting any unpaid amount. You will
pay any sales, use or other local, state, federal, foreign or other
taxes or governmental fees arising out of or in connection with this
Agreement, other than taxes based on our net income.
Denial of Credit. If your application for business
credit is denied, you have the right to a written statement of the
specific reasons for the denial. To obtain the statement, you must
contact us within 60 days from the date you are notified of our
decision and we will send you a written statement of reasons for the
denial within 30 days of receiving your request for the
statement. Notice: The Federal Equal Credit Opportunity Act prohibits
creditors from discriminating against credit applicants on the basis
of race, color, religion, national origin, sex, marital status, age
(provided the applicant has the capacity to enter into a binding
contract); because all or part of the applicant's income derives from
any public assistance program; or because the applicant has in good
faith exercised any right under the Consumer Credit Protection
Act. The federal agency that administers compliance with this law
concerning this creditor is Federal Trade Commission, Equal Credit
Opportunity, Washington, DC 20510.
Custom Domain Registration/Ownership of Work
Product. If the Advertising Product you have ordered involves
the hosting or operation of a Web site, the Universal Resource Locator
("URL") therefore must be registered in our name with a
domain registrar of our choosing so we may manage the domain while we
host or operate the Web site. If you do not have a URL, we will
procure a URL and will pay the applicable domain name registration
fees to the registrar and maintain ownership. We cannot guarantee that
any URLs and/or domain names you request for your Web site will be
available for your use. If none of your requested URLs are available,
we will contact you and request alternatives. If you already own the
registration for the desired URL, you must transfer the URL to us with
a domain registrar of our choosing. If the URL cannot be transferred
or you fail to undertake the action we request to cause the transfer,
then, in our discretion, we may (but are not obligated to) choose a
URL or domain name on your behalf. Upon termination of this Agreement
or in the event you are in breach of this Agreement, any Web sites
hosted or operated under this Agreement may be disabled, in our sole
discretion. We will invoice you for all fees payable in connection
with the transfer to you of any URL registered in our name that is
related to your Web site if you notify us in writing within thirty
(30) days after termination or expiration of this Agreement that you
desire such transfer. We will then promptly transfer such URL to you
if you timely pay such invoice. If you fail to notify us that you
desire such transfer within such thirty (30) day period or fail timely
to pay such invoice, then you waive all rights in or with respect to
such URL, and you acknowledge that we may allow the registration for
such URL to lapse, may retain and use such URL, or may transfer such
URL to a third party, without restriction.
Performance Based Advertising Products. We or our
vendor will fulfill your performance based Advertising Product
including, but not limited to, YPclicks! or YPcalls!. For YPclicks!,
internet search engines determined by us, which may include affiliated
or syndicated search engine network partners, will provide the
contracted number of clicks. We may change search engines from time to
time in our sole discretion. You agree that all placements on search
engines shall conclusively be deemed to have been approved by you. We
or our vendor will continue to fulfill your Advertising Product for
the contracted number of clicks, calls, search or other actions (an
"Action") or until your budget is exhausted. If the
applicable number of Actions has not been delivered or disputed
Actions have been credited by us in our sole discretion or your budget
has not been exhausted during the Initial Term, we will continue to
fulfill your Advertising Product at no additional charge until the
applicable number of Actions has been delivered or your budget has
been exhausted. Although we will invoice you in twelve installments
for the contract amount, we do not guarantee that the Actions will be
fulfilled within that timeframe or otherwise during the term of this
Agreement. We cannot provide you with (1) the names of the search
engines and/or search engine networks to which your advertisements
will be submitted and/or (2) the URL and IP address from which clicks
or other Actions are made. Our only obligation is that the number of
Actions identified in the Order will be provided. We do not guarantee
that any clicks (1) will be from potential customers for you and/or
(2) will be of any benefit or value to you. You acknowledge that the
clicks may be: from adult sites, from adult-sounding URLs, from sites
potentially offensive to you, the result of prohibited or improper
purposes, and the result of spiders, robots and other automated or
mechanical means. We will send or make available periodic reports from
us or Distribution Sites regarding the number of Actions we deliver.
You agree that such reports and the counts contained therein shall be
the conclusive, definitive measurements of our performance, and that
they shall determine your related obligations for all purposes of this
Agreement. No other measurements or usage statistics from any source
whatsoever shall be accepted by us or have any applicability to our
obligations or your rights under this Agreement. Notwithstanding
anything to the contrary in Section 2 of these Ts&Cs, upon
fulfillment of your performance based Advertising Product, we will
terminate your performance based program unless you and we agree to
renew it. If you cancel your performance based Advertising Product or
disable your Web site or otherwise impair our ability to complete the
Actions, we will invoice you for the remaining months of the Initial
Term or retain the amount of any remaining budget as an early
termination charge. We have no liability for any Actions you
dispute. However, in our sole discretion, we may issue you a credit
for additional Actions to be delivered.
Prohibitions, Content and Intellectual Property
Rights. The transmission of any unsolicited commercial e-mail
messages through our services is strictly prohibited without the prior
consent of the recipient. You acknowledge that neither we nor the
Distribution Sites generate the content upon a site where your
Advertising Product may be fulfilled and that neither we nor the
Distribution Sites are responsible for such content. You acknowledge
that it is not possible to avoid placing your advertisements on web
sites that display adult content, have adult-oriented domain names, or
that are primarily intended as gambling sites, you acknowledge that it
is not possible to avoid all such placements, and that we shall in no
event have any liability to you of any type or nature as a result of
any such placement or any other such placement that may be offensive
to you. We or any Distribution Site may refuse, remove and/or
terminate Advertising Products and our services due to any content
that we or a Distribution Site deem for any reason (a) may subject us,
a Distribution Site or another party to liability, (b) includes
obscene, profane, sexual, violent or other inappropriate content, or
(c) is otherwise unacceptable in our or the Distribution Site's sole
discretion; provided that we have no obligation to review your
advertisements and shall have no liability related to the content
thereof. If this occurs, you will remain responsible for payment of
all amounts to be invoiced for the then-current term and will not be
entitled to any refund or abatement or any extension of the term of
this Agreement. Furthermore, you are making the following
representations and both we and each Distribution Site are relying
upon them: (a) that you are authorized to advertise and display the
requested business, product or service, (b) you are a business, not a
consumer, (c) that the content of any advertisement is truthful and
not misleading, (d) that you are in compliance with all laws and
licensing requirements relating in any manner to the goods or services
displayed or to your advertisement, and e) that you have the right to
use and publish any requested name, address, trade name, trademark,
service mark, picture, likeness, reproduction, endorsement,
copyrighted or copyrightable item or other content and that such use
complies with all applicable laws, license agreements and other
obligations. Without limiting any of our other rights or remedies, you
agree to notify us immediately in writing at any time that you
discover or suspect that any of these representations is not true and
correct in all respects. You assume sole responsibility for the
protection of any copyrights, trademarks, service marks, trade names
and other intellectual property owned wholly or partially by you or
which you are authorized to use or display. If we receive notice or
documentation demonstrating that another person or entity contests
your right to use or display a name, trademark, service mark or other
content, we may reject or discontinue the Advertising Products and our
services without liability to you until such time you have resolved
that dispute with the other party to our satisfaction. As to
Advertising Products we create for you, whether in whole or in part,
and any derivative work that we create from your content, you
acknowledge that we are an author and assign to us all rights in and
to any independently copyrightable contribution you might have made to
the advertising. You further acknowledge that we retain all right,
title and interest, including the copyright, in such Advertising
Products and that neither you nor we intend for such advertising to
constitute a joint work. You grant us a nonexclusive license during
the term of this Agreement, including the right to sublicense, to
copy, distribute, create derivative works based upon, publicly
display, publicly perform and otherwise use any trademark, service
mark, graphics, text or other content you provide to us in connection
with our performance of our obligations under this Agreement. Upon
termination of this Agreement, we are not obligated to return any of
these works to you.
Design of Our Sites, Advertising Products, Statistics and
Interruption of Our Services. We and the Distribution Sites
may redesign or modify the organization, structure and/or
"look-and-feel" of our respective Web sites, Advertising
Products, and published set of headings and directories at any time
and without notice; we may discontinue or add Distribution Sites at
any time in our sole discretion. Although we assign each Advertising
Product an internally generated point value and/or seniority date,
such assignment is internal to us and does not confer any rights to
you. We or any Distribution Site may position your advertisement on
any page within the appropriate sites, in any position upon such page,
in any sequence and in association with any classified heading or
keyword(s) we or any Distribution Site deems appropriate unless
otherwise specifically noted in the Order. Unless expressly provided
on the Order, neither any Distribution Site nor we make any
representation or warranty with respect to traffic or usage statistics
regarding Actions on our site or on any Distribution Site or the
levels of impressions, cost per click, or click-through rates or the
quality or conversion rate for any advertisement. An
"impression" means each occurrence of a display of an
advertisement. Neither any Distribution Site nor we will have any
liability to you and you will remain responsible for all moneys owed
to us should there be an interruption in our Web site or any third
party site or other interruption in our services hereunder for any
period of time, although we may, in our sole discretion, issue credits
or extend the term of this Agreement in the event of interruptions
lasting several days or longer.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY
PROVIDED IN THE ORDER, NEITHER WE NOR ANY DISTRIBUTION SITE MAKES ANY
REPRESENTATIONS, WARRANTIES OR GUARANTEES TO YOU OF ANY KIND, EITHER
EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
NONINFRINGEMENT OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE
OF DEALING OR COURSE OF PERFORMANCE), REGARDING THE FUNCTIONALITY,
PERFORMANCE OR RESULTS OF THE ADVERTISEMENTS OR ADVERTISING PRODUCTS,
LINKED SITES, ANY SITE WE MAY CREATE FOR YOU, OR OTHERWISE UNDER OR
RELATED TO THIS AGREEMENT.
Assignment. You may not resell, assign, transfer
or delegate any of your rights, duties or obligations without our
prior written consent, which we may grant or withhold in the exercise
of our absolute and sole discretion; in the event we give such
consent, the assignee must, without any reservation, assume all of
your rights, duties and obligations. Any attempt to resell, assign,
transfer or delegate such rights, duties or obligations without our
prior written consent shall constitute a breach of this Agreement and
shall be of no force or effect. We shall have the right to subcontract
performance of our obligations hereunder or to assign or otherwise
transfer this Agreement or any of our rights, obligations or duties
hereunder to any person or entity at any time.
Notices. All of our notices, demands and other
communications must be in writing and will be deemed to have been
given (a) if mailed by certified mail, postage prepaid, (b) if
delivered by overnight courier, (c) if sent by facsimile transmission
and such transmission is confirmed as received, or (d) if sent by
electronic mail, and such message is confirmed as received, in each
case to the address, fax number or e-mail address specified on the
Order for the recipient of such notice. All of your notices, demands
and other communications must be in writing and will be deemed to have
been given (a) if mailed by certified mail, postage prepaid or if
delivered by overnight courier, to our address.
Liability. NEITHER WE NOR ANY DISTRIBUTION SITE
NOR ANY OF OUR OTHER VENDORS SHALL HAVE ANY LIABILITY UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE ADVERTISING PRODUCTS FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY
DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF
PROFIT, LOSS OF INCOME OR REVENUE, LOSS OF GOODWILL, THE REJECTION OR
REMOVAL OF ANY ADVERTISING CONTENT, ANY DELAY IN DISPLAYING OR OUR
FAILURE TO DISPLAY CONTENT, OR OUR FAILURE TO PERFORM
SERVICES. WITHOUT LIMITING THE PROVISIONS OF SECTION 13, IN NO EVENT
SHALL OUR LIABILITY FOR MONETARY DAMAGES EXCEED THE AMOUNT YOU HAVE
ACTUALLY PAID TO US FOR THE ADVERTISING PRODUCTS OR OTHER SERVICES
WITH RESPECT TO WHICH SUCH LIABILITY AROSE. You acknowledge and agree
that the provisions of this Agreement that limit liability, disclaim
warranties, or exclude consequential damages or other damages or
remedies are essential terms of this Agreement and are fundamental to
the parties' understanding regarding allocation of risk. Accordingly,
such provisions shall be severable and independent of any other
provisions of this Agreement and shall be enforced regardless of any
breach hereof or other occurrence or condition relating in any way to
this Agreement or the Advertising Products. Without limiting the
generality of the foregoing, YOU AGREE THAT ALL LIMITATIONS OF
LIABILITY, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS OF CONSEQUENTIAL
DAMAGES OR OTHER DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID,
EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS,
EVEN UNDER CIRCUMSTANCES THAT CAUSE ANY EXCLUSIVE REMEDY UNDER THIS
AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. The limitations contained
in this Section 13 apply regardless of the form of action, including
actions in contract, tort (including negligence), and strict
liability.
Exclusive Remedies. If we breach our obligation
hereunder to fulfill any Advertising Product or breach any other
obligation hereunder, we will make commercially reasonable efforts to
fulfill such Advertising Product at a later date on the same or
substitute site or internet search engine or otherwise reasonably to
cure such breach. THE FOREGOING CONSTITUTES OUR SOLE OBLIGATION AND
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH BY US OF THIS AGREEMENT
(EITHER DIRECTLY OR THROUGH A FAILURE OF PERFORMANCE BY ANY
DISTRIBUTION SITE).
Force Majeure. In no event shall we or any
Distribution Site have liability or be deemed to be in breach hereof
for any failure or delay of performance resulting from any
governmental action, fire, flood, insurrection, earthquake, power
failure, network failure, riot, explosion, embargo, strikes (whether
legal or illegal), terrorist act, labor or material shortage,
transportation interruption of any kind or work slowdown or any other
condition not reasonably within our control. Your payment obligations
shall continue during any event of force majeure.
Indemnification. You agree to indemnify us and the
Distribution Sites and hold us and the Distribution Site harmless from
and with respect to any claims, actions, liabilities, losses,
expenses, damages and costs (including, without limitation, actual
attorneys' fees) that may at any time be incurred by us or them
arising out of or in connection with this Agreement or any Advertising
Products or services you request, including, without limitation, any
claims, suits or proceedings for defamation or libel, violation of
right of privacy or publicity, criminal investigations, infringement
of intellectual property, false or deceptive advertising or sales
practices and any virus, contaminating or destructive features.
Telephone Conversations. All telephone
conversations between you and us about your advertising may be
recorded and you hereby consent to such monitoring and
recordation.
Applicable Law. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the State
of California applicable to contracts entered into and performed in New
York by residents thereof. Any action or proceeding brought by you
under or relating to this Agreement shall be brought in a state or
federal court located in the City of California, State of California, and
you hereby irrevocably submit to the personal jurisdiction of and
irrevocably consent to venue in such courts for purposes of any such
action or proceeding. Any claim against us arising from this Agreement
shall be adjudicated on an individual basis, and shall not be
consolidated in any proceeding with any claim or controversy by any
other party.
Entire Agreement. This Agreement constitutes the
entire agreement between you and us with respect to the subject matter
of this Agreement and supersedes all prior written and all prior or
contemporaneous oral communications regarding such subject
matter. Accordingly, you should not rely on any representations or
warranties that are not expressly set forth in this Agreement. If any
provision or provisions of this Agreement shall be held to be invalid,
illegal, unenforceable or in conflict with the law of any
jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
impaired. Except as provided in Section 1, this Agreement may not be
modified except by writing signed by you and us; provided, however, we
may change these Ts&Cs from time to time, and such revised terms
and conditions shall be effective with respect to any Advertising
Products ordered after written notice of such revised terms to you or,
if earlier, posting of such revised terms and conditions on our Web
site.
Effective Dec. 10, 2001
