PLEASE READ THESE TERMS AND CONDITIONS (these “TERMS”) CAREFULLY. THEY GOVERN YOUR AND/OR YOUR COMPANY’S (“YOUR,” or “YOU”) USE OF ADVERTISING PRODUCTS AND SERVICES (“SERVICES”) TO BE PROVIDED BY YOURMACDILL.COM (the “COMPANY”) AND, FROM TIME TO TIME, CERTAIN AFFILIATES OF THE COMPANY, WHICH YOU HAVE ACQUIRED VIA THE COMPANY WEBSITE (OR ANY COMPANY PARTY WEBSITES). FOR PURPOSES OF THESE TERMS, THE TERM “WEBSITE” INCLUDES ANY EMBODIMENT OR DERIVATIVE OF THE WEBSITES MADE AVAILABLE VIA MOBILE APPLICATION OR OTHER DIGITAL MEANS. BY REGISTERING FOR, ACCESSING, BROWSING, OR USING THE WEBSITE OR THE SERVICES OR BOTH, YOU ACKNOWLEDGE THAT YOU ARE RECEIVING A BENEFIT FROM THE COMPANY, AND THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE FOLLOWING TERMS (WITHOUT MODIFICATION), INCLUDING ANY ADDITIONAL GUIDELINES AND FUTURE MODIFICATIONS MADE BY THE COMPANY. THESE TERMS WILL BE DEEMED EFFECTIVE UPON YOUR EXECUTION OF A COMPANY ADVERTISING AGREEMENT (an “ADVERTISING AGREEMENT”) PURSUANT TO WHICH YOU AGREE TO PAY FOR, AND THE COMPANY AGREES TO PROVIDE, CERTAIN SERVICES.
Payment for Services.
Payment for Services, in the amount set forth on the respective Advertising Agreement (the “Fees”), shall be paid not later than the payment date(s) set forth in the corresponding Purchase Order. Fees not timely paid shall accrue interest at a monthly rate equal to 1.5% of such unpaid Fees. Notwithstanding the foregoing, in the event that Fees remain unpaid for more than thirty (30) days from their respective due-date, the Company may, in its sole discretion, terminate all further Services, provided however that your obligation to pay Fees pursuant to this Section 1 shall survive any such termination.
- On the corresponding Advertising Agreement, you have elected to retain the Company to provide one of the following sets of Services (each a “Package”): (i) digital promotional content (“Digital Ads”), (ii) print promotional content (“Print Ads,” and together with Digital Ads, hereinafter referred to as “Ads”), or (iii) both Print Ads and Digital Ads.
- Each Package sets forth parameters for time, frequency, location, and other placement information with respect to your Ads (“Package Parameters”).
- If you elected to purchase a Digital Ad, your Digital Ad will run for a period of one (1) year, subject to your Package Parameters. If you elected to purchase a Print Ad, your Print Ad will be run once in the annual publication(s) set forth as part of your Package Parameters.
- Within fourteen (14) days of the execution and delivery of the corresponding Advertising Agreement you shall deliver to the Company a draft of your Ads (the “Ad Draft”). Upon receipt thereof, the Company will modify the Ad Draft for the purpose of adapting it to the desired medium (Website or print publication). From time to time the Company may provide certain advertisement specifications and you agree to cause all Ad Drafts to conform to such specifications. The Company reserves all rights, but shall have no duty, to determine whether the content submitted for the Ads is acceptable for use on the Websites. The Company shall not have any responsibility or liability for any errors, inaccuracies or inappropriate content in the advertisements. The Company may also, in its sole discretion, modify or refuse to publish any advertisements that are not functional or compatible with the Websites, that contain or link any Website to any content the Company reasonably deems to be objectionable, that violate any applicable laws, rules or regulations of a governmental body, or that violate the Company’s standards for publication. Your failure to provide an Ad Draft within fourteen (14) days of the execution and delivery of the corresponding Advertising Agreement shall constitute your authorization for the Company to design and post your Ad (a “Company Designed Ad”). The Company makes no representations or warranties with respect to the style, design, shape, size, or any other aspect of any Company Designed Ad and you hereby waive your right to, after the posting of any Company Designed Ad, protest the style, design, shape, size, or any other aspect of any Company Designed Ad.
- You should be aware that in general, information sent through the Internet is not secure. Email services that may be provided in connection with the Services generally are not encrypted and do not provide a secure and private means of communication with us. For certain types of Services communications, we may require the use of encryption technologies provided for your protection and/or require you to use your identification information (the “User ID”) and passwords. You are responsible for the confidentiality and use of your User ID, password, and any other information that the Company (or any account portal used to monitor or manage your Services (an “Account Portal”)) may request or require, from time to time. If you become aware of any loss, theft or unauthorized use of your User ID, password or any other information used by the Company or in connection with the Account Portal, you must immediately notify the Company.
The force and effect of these Terms shall commence on the date of your execution and delivery of a corresponding Advertising Agreement (the “Execution Date”) and expire on the one (1) year anniversary of the Execution Date (the “Initial Term”), provided however that these terms shall automatically renew for subsequent one (1) year periods (each a “Subsequent Term,” and each Subsequent Term together with the Initial Term hereinafter collectively referred to as the “Term”) unless either party delivers to the other party, not less than thirty (30) days prior to the commencement of any Subsequent Term, notice of its desire for these Terms not to so renew, and provided further that no Services will be rendered by the Company while any payment due to the Company as set forth on a corresponding Purchase Order (including interest accrued pursuant to Section 1 of this Agreement) remains, to any extent, unpaid. You authorize the Company, in each Subsequent Term, to reproduce the Services you acquired in the Initial Term (either a Digital Ad, a Print Ad, or both), subject to the Company’s customary annual increase in Fees. The Term is specific to the corresponding Advertising Agreement.
Representations and Warranties.
- The Company will make commercially reasonable efforts to keep all Websites where your Digital Ads are featured running without interruption. Notwithstanding the foregoing, you agree that the Website(s) may be inaccessible from time to time for (1) reasons beyond the reasonable control of the Company, including interruption or failure of internet connectivity or any other communication links, network attacks or congestion, failures, interruptions, outages or problems with any software, hardware, system, network facility or other material either (x) not supplied by the Company, or (y) if supplied by the Company, which would not have been avoided by the use of commercially reasonable efforts, and (2) for periodic maintenance procedures or upgrades performed by the Company or its agents. When reasonably practicable, the Company will perform all maintenance and upgrades on weekdays outside the hours of 9:00AM to 10:00 PM ET and on weekends.
- You represent and warrant to the Company that:
- Your execution and delivery of the corresponding Advertising Agreement, and the consummation of the transactions contemplated thereby (i) are within your power and (ii) have been duly authorized by all necessary actions on your behalf.
- All text, graphics, photos, designs, trademarks, hyperlinks and other content comprising the Ads are owned by you or you have permission from the rightful owner to use each of these elements and that such content does not infringe or otherwise violate any third-party intellectual property rights. You further represent and warrant that the Ads do not contain any libelous or slanderous materials, do not invade anyone’s privacy, do not compromise anyone’s personal safety, do not contain or link to any obscenity, pornography or any illicit activities and do not violate any applicable laws, rules or regulations.
Disclaimer; Limitation of Liability.
THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AND THE COMPANY SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON WITH RESPECT TO ANY LIABILITY, LOSS OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS CAUSED BY OR ARISING OUT OF, EITHER DIRECTLY OR INDIRECTLY, ANY BREACH BY THE COMPANY OF ANY OF THESE TERMS, OR IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS. SPECIFICALLY, AND WITHOUT IN ANY WAY LIMITING THE FOREGOING, THE COMPANY DOES NOT REPRESENT OR WARRANT THAT ANY ADVERTISEMENTS OR OTHER MATERIAL WILL BE DISPLAYED ON THE WEBSITES WITHOUT INTERRUPTION OR ERROR. IN NO EVENT SHALL THE COMPANY’S LIABILITY FOR ANY REASON UNDER ANY THEORY EXCEED THE AMOUNT PAID TO IT BY YOU UNDER PURSUANT TO THE CORRESPONDING ADVERTISING AGREEMENT IN CONNETION WITH WHICH THESE TERMS ARE EFFECTIVE.
Indemnification.You agree to indemnify, defend and hold harmless the Company, its agents, representatives, members, shareholders, managers and officers from and against any and all losses, damages and costs (including reasonable attorneys’ fees) incurred or suffered on account of or by reason of (a) any breach or violation by you of any provision of these Terms, (b) by any act or omission by you, your agents, representatives, officers, shareholders, members, partners, employees or contractors, and (c) any and all actions, suits, proceedings, claims, demands, assessments and judgments incident to the foregoing. This paragraph shall survive termination of the Term.
- Confidential Information. During the Term, and for a period of three (3) years thereafter (except with respect to trade secrets, which shall be held in confidence for so long as they constitute trade secrets pursuant to the applicable law), each party and its affiliates, directors, officers, employees, authorized representatives, agents and advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential all information concerning the other party’s proprietary business procedures, products, services, operations, marketing materials, fees and policies or plans, received or obtained during the negotiation or performance of these Terms, whether such information is oral or written, and whether or not labeled as confidential by such Party (collectively, “Confidential Information”), provided however that either party may share Confidential Information of the other party with its officers, employees or representatives as necessary in connection with the performance by that party of its obligations arising hereunder. The receiving party shall safeguard disclosure of Confidential Information to the same extent that the receiving party safeguards its own Confidential Information, but in any case will at minimum use reasonable care. Upon request of the disclosing party, the receiving party will promptly return to the disclosing party or destroy, certifying in writing to the disclosing party the destruction of such, Confidential Information of the disclosing party.
- Exclusions from Definition of Confidential Information. The following information shall not be considered “Confidential Information” for the purposes of these Terms: information which (i) is or becomes publicly known without any fault of or participation by the receiving party or its representatives; (ii) was in the receiving party’s possession prior to the time it was received from the disclosing Party or came into the receiving party’s possession thereafter, in each case lawfully obtained from a source other than disclosing party or its representatives and not subject to any obligation of confidentiality or restriction on use; (iii) is required to be disclosed by judicial arbitral or governmental order or process or operation of law, in which event the receiving party will, unless prohibited by law, notify the disclosing party of the requirement of disclosure before making such disclosure and will comply with any protective order or other limitation on disclosure obtained by the disclosing party; or (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information.
- All of the information and content on the Websites including but not limited to all text, graphics, photos, artwork, games, software applications and code, video, audio, telephone calls, online communication and instant messaging, and user interface design, and any downloadable media, whether provided for free or at cost, including but not limited to downloadable content the Company hosts, or communicates, or transmits, whether on social media or via any other means, or any comment the Company makes regarding the social media content of a party other than the Company, (the “Content”) is the property of the Company, or its affiliates, if any, or is being used by the Company with the express permission of a licensor, and is protected by copyright laws throughout the world. You may not modify, reproduce, copy, distribute, transmit, display, publish, download or upload, sell, license, create derivative works of or use any aspect of the Website or its Content for commercial or public purposes or for any other purpose not expressly permitted by these Terms. Nothing herein shall be construed to restrict the Company’s rights to pursue all remedies available to it hereunder, at law or in equity, against any person for any unauthorized use, or unauthorized facilitation of use by another, of the Content, including, without limitation, a decree of specific performance and/or injunctive relief, and the exercise of any such right by the Company shall not prohibit the Company from seeking to enforce damages pursuant to any other Section hereof or otherwise available under the applicable law. The use of the Content on any other website or in a networked computer environment for any purpose, or any other publication, republication, redistribution or use of the Content, including, without limitation, framing the Content within another site, is expressly prohibited without the prior written consent of the Company which may be withheld at the sole discretion of the Company. All copyright and other proprietary notices on any Content must be retained on any copies made thereof, including all Company trademarks. Any unauthorized reproduction or modification, distribution, or performance of any Content is strictly prohibited. The Company and its licensors reserve all rights not granted in these Terms. From time to time, the Company may post certain articles to the Websites, which may or may not have been written by the Company. Similarly, from time to time, you may be granted access to, and may access, certain Company blogs, Websites, or communal discussion boards (i.e. message boards, chat-rooms, etc.,) (“Supplemental Content”). This Supplemental Content shall be considered Content for the purpose of these Terms.
- All trademarks, logos, URLs and domain names and service marks (each a “Mark” and collectively the “Marks“), registered or not, displayed on the Websites, are property of the Company or otherwise the property of third parties. You are not permitted to use, copy, download, display, transmit or modify any of these Marks in any way without the prior written consent of the rightful owner of the Mark, whether the rightful owner be the Company or a third party. You may not include the Company name, any Mark or any variation of the foregoing, as a metatag, hidden textual element, or any other indicator that may create an impression of affiliation, sponsorship, endorsement or any other relationship between you and the Website or the Company.
- Governing Law. These Terms shall be governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to principles of conflicts of laws. Any legal suit, action or proceeding arising out of or relating to these Terms or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Tennessee, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- Force Majeure. If, for reasons beyond the Company’s control, including, but not limited to, legal restrictions, acts of God, labor disputes, force majeure events, necessity, mechanical or electrical failure or interruption or omission of the display of any Ads to be displayed pursuant to these Terms, the Company may suggest a substitute time period for display of the interrupted or omitted advertisements.
- Conflict. In the event of any conflict between these Terms and the corresponding Advertising Agreement, the language of these Terms shall take precedent.
- Assignment. Your rights, interests and obligations hereunder may not be assigned, by operation of law or otherwise, in whole or in part, without the prior written consent of the Company.
- Survival. The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of these Terms.
- Severability of the Terms. If any provision of these Terms shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- No Third-Party Beneficiaries. Except as stated herein, these Terms will not benefit or create any right or cause of action in or on behalf of any person or entity other than you and the Company.
- Modification and Waiver. No modification of these Terms or any Purchase Order and no waiver of any breach of these Terms or any Purchase Order will be effective unless in writing and signed by an authorized representative of each party. No waiver of any breach of these Terms or any Purchase Order, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of these Terms or any Purchase Order