1. Content. Advertiser shall be solely responsible for all content in any advertising created pursuant to this Agreement (the “Advertising”) and/or on the Advertiser Web site and the use of such content as Advertising (including all rights, permissions, and releases regarding Advertising and the use thereof), regardless of whether 435 Digital may or may not provide creative design or other services in connection with such content, Advertising, or Advertiser Web site. All such content must comply with 435 Digital’s standard policies and practices. Such content may not be unlawful, obscene, threatening, libelous or defamatory, and may not violate any right of any third party, including any intellectual property right and any right of privacy or publicity. 435 Digital may reject or remove any content (or any portion thereof) from any Advertising or from any Advertiser Web Site hosted or created by 435 Digital at any time for any reason.
2. 435 Digital’s Obligation. 435 Digital shall use reasonable commercial efforts to perform the Services contemplated under this Agreement. In the event of error in any Service or of any interruption or interference with any Advertising or the Advertiser Web Site, 435 Digital shall attempt to restore the affected portion to normal operations within a reasonable time after becoming aware of such failure or interruption, however the limited liability set forth in this Agreement shall be 435 Digital’s sole liability for any such problems. 435 Digital shall not be responsible for any loss, delay or interruption caused by any third party services or products, including any loss, delay or interruption caused by any contractor of 435 Digital. Advertiser understands that certain Services may be performed by 435 Digital’s third party contractors. Advertiser agrees that 435 Digital is not in any way responsible for the acts of such third parties or contractors.
3. Payment. Unless “Approved Credit,” “Automatic Bank Withdrawal” or “Credit Card Billing” is agreed to by 435 Digital, Advertiser shall pay 435 Digital in advance for all amounts due under this Services Agreement. Payment is due in full when contract is executed. If the “Approved Credit” box on the front of this form is checked, Advertiser will pay 435 Digital monthly in arrears and payment is due 25 days after the end of each calendar month for Advertising in that month. If “Automatic Bank Withdrawal” or “Credit Card Billing” is checked, Advertiser authorizes 435 Digital, or its designee, successor or assign, to automatically withdraw (monthly in advance) from Advertiser’s bank account or to bill Advertiser’s credit card, the full amount of any fees and other sums as due in conjunction with this Services Agreement. In the event of Advertiser’s default of any obligations under this Services Agreement, Advertiser agrees to pay, and authorizes the debit of its bank account or credit card, for the full amount due and for any costs incurred by 435 Digital in connection with collecting such amounts. Any payment, whether paid by debit or other means, that is not honored by Advertiser’s bank or credit card for any reason will be subject to a $25 service fee per transaction rejected, the amount of which may be debited from Advertiser’s bank account or credit card. Advertiser further authorizes its bank to accept and charge any debit entries initiated by 435 Digital to its account. This authorization remains in full force and effect for the Term. If this order is placed by an Advertising Agency, Advertising Agency (i) shall be liable to 435 Digital for payment for all services invoiced by 435 Digital, regardless of any contrary language in any past, contemporaneous or future writing, and regardless of whether the identity of Advertiser’s client is known to 435 Digital; (ii) agrees 435 Digital will not be bound by any terms, conditions or provisions in any document contrary to the terms of this insertion order; and, (iii) represents and warrants that, as agent for its client, it has all necessary authority to enter this agreement and place orders for services with 435 Digital.
4. Ownership. 435 Digital shall own all right, title and interest in and to the content of any 435 Digital Web site and all content, html, and code created by 435 Digital. Nothing in this Agreement or otherwise shall preclude 435 Digital from using any code, design, idea, concept or material used in connection with this Agreement on behalf of itself or any third party. Advertiser grants 435 Digital a non-exclusive, perpetual, royalty free, worldwide license to use, reproduce, display, modify and distribute any content, including any Advertising and any portion of the Advertiser Web Site created in connection with this Agreement, in any medium of communication now known or hereinafter created. Advertiser authorizes 435 Digital to bring any claims 435 Digital may in its reasonable discretion choose to pursue to prevent third party use of the data or content of any Advertising or any data or content on the Advertiser Web Site, without Advertiser’s consent.
5. Representations and Warranties/Indemnity. Advertiser represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it owns (or has the right to use) all content, including all trademarks, copyrighted material, and the right to use images of recognizable individuals, provided to 435 Digital or otherwise used in any Advertising or on the Advertiser Web site; (c) the content of any Advertising or the Advertiser Web site, and the use of such content as Advertising, will not violate or infringe any right of any third party, including intellectual property rights or rights of publicity/privacy; (d) it will fulfill all representations and commitments made in any Advertising or on the Advertiser Web site; and, (e) it will act at all times in accordance with all applicable laws, rules and regulations. Advertiser shall indemnify, defend and hold harmless 435 Digital, its affiliated companies, and each of their officers, directors, shareholders, employees, representatives and contractors, from every claim, liability, expense or injury related to any allegation regarding: the breach of any representation or warranty made, or failure to perform any obligation undertaken, by Advertiser pursuant to this Agreement; Advertiser’s person, property or assets; the content of, or representations made in, any Advertising or on Advertiser’s Web site; and, any other content or material created or used by Advertiser. This provision will survive termination of the Agreement.
6. Limitation of Liability. If 435 Digital is unable to provide any Service for any reason, 435 Digital shall at its option either (a) provide substitute Services of comparable value, or (b) refund to Advertiser a pro rata portion of the fee Advertiser has paid to 435 Digital. Such remedy shall be Advertiser’s sole remedy for 435 Digital’s failure to provide any Services. IN NO EVENT SHALL 435 DIGITAL BE LIABLE TO ADVERTISER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND REGARDLESS OF WHETHER 435 DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL 435 DIGITAL BE LIABLE TO ADVERTISER FOR ANY AMOUNT GREATER THAN THE AMOUNT PAID BY ADVERTISER TO 435 DIGITAL UNDER THIS AGREEMENT FOR THE MOST RECENT THREE-MONTH PERIOD PRIOR TO ANY ALLEGED CLAIM BY ADVERTISER. 435 DIGITAL EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING 435 DIGITAL’S SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTY REGARDING (a) THE NUMBER OF PERSONS WHO WILL ACCESS THE ADVERTISEMENT, ANY 435 DIGITAL SITE OR THE ADVERTISER WEB SITE; (b) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM ADVERTISING; AND (c) THE SPEED, QUALITY, ACCESSIBILITY OPERATION OR FUNCTIONALITY OF ANY ADVERTISING OR THE ADVERTISER WEB SITE.
7. Cancellation/Termination. 435 Digital may terminate this Agreement: (a) immediately if Advertiser or Advertising Agency fails to make any payment required herein or if Advertiser or Advertising Agency breaches any other provisions of this Agreement; or (b) upon 10 days’ written notice at any time for any reason. Subject to the foregoing, in the event of any breach of this Agreement by either party, the non-breaching party shall give the breaching party 30 days’ written notice of the breach and an opportunity to cure. If the breach is not cured within 30 days thereafter, the non-breaching party may terminate this Agreement with 30 days’ notice. Upon termination, all amounts due under this Agreement shall immediately become due and payable.
8. Sweepstakes/Contests. In the event the Services include assistance with sweepstakes, contests or other promotions (collectively, “Promotions”), 435 Digital may provide certain advice or forms to use in conjunction with the Promotions. 435 Digital makes no representations or warranties regarding the compliance of such Promotions with applicable laws and regulations, and Advertiser should seek independent legal advice in connection with any such Promotion. Unless otherwise expressly agreed in advance, in writing Advertiser will be solely responsible for fulfillment of all prizes awarded in the Promotion.
9. Force Majeure. Except for payment obligations, neither party shall be liable for failure to perform any obligation required under this Agreement when such failure is due to fire, flood, labor trouble, unavoidable accident, legal restrictions, electronic or electrical interference, telecommunications difficulties, system failure, technical failure, failure of any third party system or product, or any other cause beyond the control of that party.
10. Independent Contractors. The parties enter this Agreement strictly as independent contractors. Nothing in this Agreement is intended, or shall be construed, to create or imply any employment or fiduciary arrangement, partnership, agency or joint venture between the parties.
11. Exclusivity. 435 Digital will be the exclusive provider of the Services to Advertiser during the term of this Agreement.
12. Confidentiality. Advertiser will not, during the term of this Agreement or after it is terminated, without 435 Digital’s express written permission, reveal or otherwise make available to or use on behalf of any other person any proprietary or confidential information or trade secrets regarding the Services and 435 Digital’s provision of the Services.
13. No Guarantees. 435 Digital makes no guarantees regarding traffic on Advertiser’s website(s), including but not limited to site rankings or visits. 435 Digital expressly disclaims all warranties, express and implied, regarding the quality of the Services or results to be gained therefrom.
14. Governing Law. This Agreement and the validity thereof shall be construed, interpreted and enforced pursuant to and in accordance with the substantive law (excluding choice of law provisions) of the State of Illinois. The parties agree that any action related to this Agreement or its terms may be brought only in a federal or state court sitting in Chicago, Illinois.
15. Miscellaneous. Except as otherwise noted herein, this Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes and cancels all prior and/or contemporaneous agreements between the parties, whether expressed or implied, written or oral. Failure of 435 Digital to enforce any right under this Agreement shall not be construed to, and shall not, waive 435 Digital’s right to enforce any portion of this Agreement. Advertiser may not transfer or assign any of its rights under this Agreement without the prior written consent of 435 Digital. This Agreement may be modified only by a written document signed by both parties. If any portion of any provision of this Agreement is prohibited by law, such provision shall nevertheless be enforced to the greatest extent possible under law.