|
INTERNET ADVERTISING TERMS AND CONDITIONSUpdated April 5, 2007 These Internet Advertising Terms and Conditions ("T&Cs") dated February __, 2007 ("Effective Date") apply to any insertion order ("IO") submitted to and accepted by INTTRA, Inc. ("INTTRA"), d/b/a OceanSchedules.com ("OceanSchedules.com"), from any advertiser or agent of advertiser (collectively, "Advertiser"). OceanSchedules.com and Advertiser are collectively referred to as the "Parties." The T&Cs and the IO are collectively referred to as the "Advertising Agreement" or "Agreement." All references to Advertiser in this agreement shall mean the Advertiser organization entering into these T&Cs and any affiliated entity which Controls, is Controlled by, or is under common Control with Advertiser (for purposes of this Agreement "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of an entity through the ownership of more than fifty percent (50%) of its voting or equity securities or the maximum allowed by law, contract, voting trust, or otherwise). NOW, THEREFORE, in consideration of the foregoing and of the mutual representations, warranties and covenants contained herein, the Parties hereby agree as follows: 1. Advertising Services.1.1 Services. OceanSchedules.com will use commercially reasonable efforts to display the advertisement ("Online Ad") as specified in the IO throughout the term of this Agreement (the "Services").
1.2 Each IO shall specify: (i) the type(s) and amount(s) of inventory to be delivered (the "Deliverables"); (ii) the price(s) as mutually agreed by the Parties; (iii) the maximum amount of money to be spent pursuant to the IO (if applicable), (iv) the start and end dates of the Online Ad, and (v) the identity of and contact information for the particular IO (if applicable).
1.3 Delivery and Performance. Advertiser shall deliver the Online Ad to OceanSchedules.com in such file formats and on such media as specified in a signed IO at least five (5) business days before the scheduled Start Date specified in the IO. The delivery of a signed IO confirms that this is a binding contract. Advertiser shall be solely responsible for providing the Online Ad in the format required by OceanSchedules.com as set forth at www.oceanschedules.com. Advertiser acknowledges that OceanSchedules.com shall not be responsible for any delays in the posting or display of the Online Ad due to Advertiser's failure to deliver the Online Ad in substantial conformance with the IO and these T&Cs. Revisions to accepted IOs must be made in writing and acknowledged by OceanSchedules.com in writing. 2. Interruption of Services. Advertiser understands and agrees that from time to time OceanSchedules.com may not display the Online Ad as scheduled in the IO, or the URL as may be designated from time to time by OceanSchedules.com (the "Site") may be inaccessible or inoperable, or, for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which OceanSchedules.com may undertake from time to time; or (iii) causes beyond the control of OceanSchedules.com and which are not reasonably predictable by OceanSchedules.com, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks and network congestion or other failures. Such interruption of Services will not be deemed a breach of the Advertising Agreement or any provision thereof.3. License. In connection with this Agreement, Advertiser grants to OceanSchedules.com non-exclusive, worldwide license, for the term of this Agreement to: (a) copy, use, store, publicly display, publicly perform and transmit the Online Ad; (b) incorporate the hypertext reference links of the Online Ad; (c) display Advertiser's trade names, trademarks or service marks in the Online Ad; and (d) authorize third parties the right to do (a), (b) and (c) as set forth in this Section 3.4. Proprietary Rights4.1 OceanSchedules.com Ownership. Except as provided in Section 4.2, Advertiser acknowledges that the OceanSchedules.com Website(s), or Site including, without limitation, all trade names, trademarks, service marks, content, text, images, software, media and other materials therein, is a work or collective work, proprietary to or licensed by OceanSchedules.com, protected under copyright, trademark and other intellectual property laws, whether or not developed by OceanSchedules.com or any other person.
4.2 Advertiser Ownership. Advertiser retains all right, title and interest (including copyright and other proprietary or intellectual property rights) in the content of the Online Ad, Advertiser's trade names, trademarks and service marks therein and all legally protectable elements, derivative works, modifications and enhancements thereto, whether or not developed by Advertiser or any contractor, subcontractor or agent for Advertiser.5. Unacceptable Content. OceanSchedules.com reserves the right to cancel or reject any Online Ad at any time for any or no reason, without penalty or notice, even though previously acknowledged or accepted by OceanSchedules.com.6. Fees and Payment.6.1 Fees. All INTTRA invoices are rendered on a monthly basis prior to the start date for the Online Ad and are due thirty (30) days following invoice date. OceanSchedules.com reserves the right to charge the lesser of 1 ½% interest or the maximum rate of interest allowable by law for any payments received after the above specified due date. Advertiser shall pay all costs of collection, including reasonable attorney's fees and costs in the event any collection effort or action is required to collect the Fees.
6.2 Taxes. Advertiser shall be solely responsible for and shall pay all sales, use, service or other taxes, duties or levies of any governmental entity (exclusive of taxes on OceanSchedules.com's net income), including interest and penalties thereon, if any, relating to the Services, whether or not stated in any invoice to Advertiser. 7. Warranties and Disclaimer.7.1 Advertiser Warranty. Advertiser warrants to OceanSchedules.com that: (i) Advertiser has the right and authority to enter into and perform its obligations under this Agreement; (ii) the Online Ad shall conform to the description and specifications set forth in the IO; (iii) the Online Ad shall not constitute or be the subject of a notice or claim of any false designation of origin, false advertising or unfair competition under the law of any jurisdiction; (iv) the Online Ad does not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials or link that actually or potentially violates any applicable law or regulation, or infringes any proprietary, intellectual property, contract or tort right of any person or misappropriates a person's trade secret, name, likeness or identity; (v) the Online Ad does not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials or link that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (vi) the Online Ad contains no viruses, worms, malicious code, trap doors, back doors, timers, clocks, counters, FTP servers, or other limiting routines, instructions or designs, and no web beacons, web bugs, spyware or other similar hidden or transparent code, script, or routine designed to gather, track or transmit information about OceanSchedules.com or the users of the OceanSchedules.com website(s); and (vii) Advertiser owns the Online Ad and all intellectual property rights therein, or has the right to grant the license to OceanSchedules.com herein and authorize the worldwide copying, display and transmission of the Online Ad content.
7.2 OceanSchedules.com Warranty. OceanSchedules.com represents and warrants to Advertiser that: (i) OceanSchedules.com has the power and authority to enter into and perform its obligations under this Agreement; and (ii) OceanSchedules.com shall perform its obligations under this Agreement in a commercially reasonable manner.
7.3 Disclaimer. THE SERVICES AND SITE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. PROVISION AND/OR USE OF THE SERVICES OR SITE ARE AT ADVERTISER'S SOLE RISK. OCEANSCHEDULES.COM DOES NOT WARRANT THAT THE SERVICES OR SITE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES OCEANSCHEDULES.COM MAKE ANY WARRANTY AS TO THE PERFORMANCE OR ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES OR SITE. EXCEPT AS EXPRESSLY STATED AT SECTION 8(b), OCEANSCHEDULES.COM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT.8. Exclusive Remedy and Limitation of Liability. If OceanSchedules.com breaches its warranties in this Agreement, such that it fails to display the Online Ad substantially in accordance with the schedule provided in the IO, then Advertiser's exclusive remedy, to be determined at OceanSchedules.com's sole discretion, will be any one of the following: (i) a pro rata refund of the Fees paid to OceanSchedules.com under the relevant IO; (ii) the placement of a mutually acceptable substitute Online Ad at a later time and in a comparable position on the Site to be determined by OceanSchedules.com; or (iii) an extension of the Term of this Agreement equal to the duration of the failure. OceanSchedules.com will have no liability or obligation to provide any of the foregoing exclusive remedies if the failure is caused by matters beyond its control, including without limitation, failures resulting from governmental action, fire, flood, earthquake, riot, war, acts of terrorism, strikes, labor work slowdowns and stoppages, and the actions or inaction of the Advertiser, or if the failure is a result of any matter described in Section 2.IN NO EVENT SHALL OCEANSCHEDULES.COM BE LIABLE TO ADVERTISER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF OCEANSCHEDULES.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OCEANSCHEDULES.COM'S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID TO OCEANSCHEDULES.COM BY ADVERTISER HEREUNDER. 9. Indemnification. Advertiser agrees to indemnify, hold harmless and defend OceanSchedules.com and its directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney's fees, arising from or relating to: (i) the content of the Online Ad; (ii) any negligence or willful misconduct of Advertiser; (iii) any breach of Advertiser's warranties under Section 7(a); (iv) Advertiser's goods or services that are promoted, offered, sold, or made available to users through the Online Ad; and (v) any material to which users can link through the Online Ad. Advertiser agrees that OceanSchedules.com shall have the right to participate in the defense of any such claim through counsel of its own choosing. Advertiser further agrees that any compromise or settlement of such disputes will contain a complete, express and unconditional release of OceanSchedules.com.10. Term and Termination.10.1 Term. The term of this Agreement shall commence on the Effective Date and will continue unless sooner terminated as provided in this Agreement.
10.2 Termination. This Agreement may be terminated: (i) by either party upon 30 days written notice to the other party in the event of a material breach of this Agreement by the other party that remains uncured; (ii) by either party in the event a party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against such party, or if a receiver or trustee is appointed for all or any part of the property or assets of such party; (iii) by OceanSchedules.com for no cause, immediately upon notice to Advertiser; or (iv) by a written agreement executed by the Parties.
10.3 Return and Destruction. Upon any termination or expiration of this Agreement, OceanSchedules.com may retain the original or copies of the Online Ad for dispute resolution purposes or in the event of any claim or dispute concerning the Online Ad or Services.
10.4 Payment Upon Termination. In the event this Agreement is terminated by Client, Client shall pay OceanSchedules.com for all Services undertaken in performance of its obligations hereunder up to the date of termination and will also pay an early termination fee equal to 50% of the remaining commitment made by Advertiser as specified in the IO. Such payment is due and payable within 30 days following such termination.11. General.11.1 Waiver. No waiver of any provision or of any right or remedy shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy shall constitute a waiver of any other right or remedy, or future exercise of it.
11.2 Severability. If a court of competent jurisdiction determines that any part of the Agreement is invalid or unenforceable, then the invalid or unenforceable part will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original part and the remainder of the Agreement shall continue in effect.
11.3 Notice. All notices shall be in writing and shall be deemed to be delivered when received by Certified Mail, postage prepaid, Return Receipt Requested. All notices to OceanSchedules.com shall be to the contact as noted in the IO with a copy to the Legal Department. All notices to the Advertiser shall be sent to the address specified in the IO.
11.4 Amendment. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both Parties. No terms or conditions, printed or otherwise, appearing on contracts, orders, insertion orders, copy instructions, or otherwise which conflict with or amend the provisions of these T&Cs or which are inserted unilaterally by the Advertiser will be binding on OceanSchedules.com.
11.5 IO Submission. Advertiser may submit IOs to OceanSchedules.com in writing (which, unless otherwise specified, for purposes of these T&Cs shall include paper, fax, or e-mail communication).
11.6 Titles. Titles and paragraph headings contained in this Agreement are for convenience only and in no way define, limit, expand, or interpret the scope of this Agreement or of any provision hereof.
11.7 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York, without regard to conflict of laws rules thereof. Each of the Parties irrevocably submits to the exclusive jurisdiction and venue of the courts of the U.S. District Court for the Southern District of New York and waives any objection to venue in such court. If such court lacks subject matter jurisdiction, the Parties irrevocably submit to the exclusive jurisdiction and venue of the state courts of New York encompassed within New York County.
11.8 Survival. The definitions in the T&Cs and the respective rights and obligations of the parties under Sections 4, 5, 6, 7, 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.
11.9 Entire Agreement. The T&Cs, together with the IOs, which is incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. If any provision of the IO conflicts irreconcilably with a provision of the T&Cs, the IO will control.
11.10 English Language. This Agreement is prepared and is executed in the English language. The English language version shall be controlling in all respects, and any version of this Agreement in any other language shall not be binding and shall have no effect. Without limiting the foregoing, if there is any conflict or inconsistency between the English language version and any other language version of this Agreement, the English language version and interpretation shall prevail.Accepted and agreed to: | | Advertiser: | ____________________________________ | Authorized Signature: | ____________________________________ | | Printed Name and Title: | ____________________________________ | | Date: | ____________________________________ | |
OceanSchedules.com | | Authorized Signature: | ____________________________________ | | Printed Name and Title | ____________________________________ | | Date: | ____________________________________ |
|