STANDARD TERMS and
CONDITIONS for ADVERTISING:
These terms and conditions
("Standard Terms") shall be deemed incorporated by
reference into any insertion order (the "Insertion Order")
submitted by the Advertiser or its agency set forth in the Insertion
Order (collectively, "Advertiser") and shall govern the
Insertion Order, superseding all terms therein except for those
relating to advertisement scheduling and pricing. All Insertion
Orders are subject to acceptance by MarinaMate.com. Rates and the
Standard Terms are subject to change without notice. The Standard
Terms and Insertion Order shall be collectively known as the
"Agreement." Advertiser and its agency (if applicable)
shall be jointly and severally responsible under this Agreement.
1. Term of Agreement. The
term of this Agreement commences on the Acceptance Date set forth in
the Insertion Order and terminates on the End Date set forth in the
Insertion Order.
2. Terms of Payment.
Advertiser, if advertising with MarinaMate.com for the first time,
must submit a completed MarinaMate.com credit application. If no
credit application is submitted or the request for credit is denied
by MarinaMate.com (at its sole discretion), the Insertion Order must
be paid in advance of the advertisement Start Date set forth in the
Insertion Order. If MarinaMate.com approves the request for credit,
MarinaMate.com will invoice Advertiser as set forth in the Insertion
Order. Payment as set forth in the Insertion Order shall be made to
MarinaMate.com within 30 days of the date of invoice. Amounts paid
after such date shall bear interest at the rate of one-and-one-half
percent per month (or the highest rate permitted by law, if less)
until paid in full. In the event of any failure by Advertiser to
make payment, Advertiser will be responsible for all reasonable
expenses (including attorney's fees) incurred by MarinaMate.com in
collecting such amounts. All payment accounts in this Agreement are
in U.S. dollars and are exclusive of any applicable taxes and shall
be made free and clear of, without reduction for, (and Participant
shall be responsible for and shall indemnify MarinaMate.com
against) any applicable U.S. and foreign, state, and local taxes;
value-added or sales taxes; withholding taxes, duties or levies and
assessments, howsoever designated or computed, pertaining to the
payments under this Agreement (excluding taxes based upon the net
income of MarinaMate.com). Participant shall promptly furnish
MarinaMate.com with tax receipts evidencing the payment of any taxes
referred to in the preceding sentence. MarinaMate.com and
Participant shall cooperate with each other in minimizing any
applicable tax and in obtaining any exemption from or reduced rate
of tax available under any applicable law or tax treaty.
3. Positioning. Except as
otherwise expressly provided in the Insertion Order, positioning of
advertisements within the MarinaMate.com web site or on any page is
at the sole discretion of MarinaMate.com.
4. Renewal. Except as
expressly set forth in the Insertion Order, any renewal of the
Insertion Order and acceptance of any additional advertising order
shall be at MarinaMate.com's sole discretion. Pricing for any
renewal period is subject to change by MarinaMate.com from time to
time.
5. No Assignment or Resale of Ad
Space. Advertisers may not resell, assign, or transfer any of
its rights hereunder. Any attempt by Advertiser to resell, assign or
transfer such rights shall result in immediate and automatic
termination of this Agreement, without liability to MarinaMate.com.
6. Provision of Advertising
Materials. (a) Advertiser will provide all materials for the
advertisement in accordance with MarinaMate.com's policies in effect
from time to time, including without limitation the manner of
transmission to MarinaMate.com and the lead-time prior to
publication of the advertisement. MarinaMate.com shall not be
required to publish any advertisement that is not received in
accordance with such policies and reserves the right, at
MarinaMate.com's sole discretion, to charge Advertiser, at the rate
specified in the Insertion Order, for inventory held by
MarinaMate.com pending receipt of acceptable materials from
Advertiser which are past due, or publish in substitution any prior
advertisement submitted by Advertiser until such time as
MarinaMate.com can reasonably begin publication of the advertisement
set forth in the Insertion Order. All changes to advertisement must
be made in writing to MarinaMate.com (marinamate@mindspring.com) and
prior to the lead-time deadline. Advertiser hereby grants to
MarinaMate.com a nonexclusive, worldwide, fully paid license to use,
perform, reproduce, display, transmit, and distribute the
advertisement and all contents therein in accordance herewith. (b)
If Advertiser uses third parties to serve the advertisement
hereunder ("Third Parties"), Advertiser shall be
responsible for such Third Parties complying with the terms of this
Agreement.
7. Statistics. Unless
specified in the Insertion Order, MarinaMate.com makes no guarantee
with respect to usage statistics or levels of impressions for any
advertisement. Advertiser acknowledges that delivery statistics
provided by MarinaMate.com are the official and definitive
measurement of MarinaMate.com's performance on any delivery
obligations provided in the Insertion Order. No other measurements
or usage statistics (including those of Advertiser or Third Parties)
shall be accepted by MarinaMate.com or have any effect on this
Agreement. An "impression" means each occurrence of a
display of an advertisement. MarinaMate.com bases payment for
advertising on total time of placement of ad, rounding up to the
nearest month.
8. Right to Reject Advertisement.
All contents of advertisements (including those served by Third
Parties) are subject to MarinaMate.com's approval. MarinaMate.com
reserves the right to reject or cancel any advertisement, Insertion
Order, URL link, space reservation or position commitment, at any
time, for any reason whatsoever (including belief by MarinaMate.com
that any placement thereof may subject MarinaMate.com to criminal or
civil liability).
9. No Warranty.
MARINAMATE.COM MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT
TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER
SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF
NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR
PURPOSE.
10. Limitations of Liability.
In the event that MarinaMate.com fails to publish an advertisement
in accordance with the schedule provided in the Insertion Order, or
in the event that MarinaMate.com fails to post the ad for the time
specified in the Insertion Order, or in the event of any other
failure, technical or otherwise of such advertisement to appear as
provided in the Insertion Order, the sole liability of
MarinaMate.com and exclusive remedy of Advertiser shall be limited
to, at MarinaMate.com's sole discretion, placement of the
advertisement at a later time in a comparable position, or extension
of the End Date specified in the Insertion Order until the total
time is delivered. In no event shall MarinaMate.com be liable for
any act or omission, or any event directly or indirectly resulting
from any act or omission, of Third Parties (if any). IN NO EVENT
SHALL MARINAMATE.COM BE LIABLE UNDER THIS AGREEMENT FOR ANY
CONSEQUENTIAL, SPECIAL, LOST PROFITS, INDIRECT OR OTHER DAMAGES,
WHETHER BASE IN CONTRACT, TORT OR OTHERWISE, EVEN IF MARINAMATE.COM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. MARINAMATE.COM'S AGGREGATE LIABILITY UNDER THIS AGREEMENT
FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY MARINAMATE.COM
FROM ADVERTISER FOR THE INSERTION ORDER GIVING RISE TO THE CLAIM.
Without limiting the foregoing, MarinaMate.com shall have no
liability for any failure or delay resulting from any governmental
action, fire, flood, insurrection, earthquake, power failure, riot,
explosion, embargo, strikes whether legal or illegal, labor or
material shortage, transportation interruption of any kind, work
slowdown, or any other condition affecting production or delivery in
any manner beyond the control of MarinaMate.com. Advertiser
acknowledges that MarinaMate.com has entered into this Agreement in
reliance upon the limitations of liability set forth herein and that
the same is an essential basis of the bargain between the parties.
11. Advertiser's Representations;
Indemnification. Advertiser represents and warrants to
MarinaMate.com, and Third Parties (if any), that Advertiser holds
all necessary rights to permit the use of the advertisement by
MarinaMate.com for the purpose of this Agreement; and that the use,
reproduction, distribution, transmission or display of
advertisement, any data regarding users, and any material to which
users can link, or any products or service made available to users,
through the advertisement will not (a) violate any criminal laws or
any rights of any third parties or (b) contain any material that is
unlawful or otherwise objectionable, including without limitation
any material that encourages conduct that would constitute a
criminal offense, give rise to civil liability, or otherwise violate
any applicable law. Advertiser agrees to indemnify, defend and hold
MarinaMate.com and Third Parties (if any) harmless from and against
any and all liability, loss, damages, claims or causes of action,
including reasonable legal fees and expenses, arising out of or
related to (i) breach of any of the foregoing representations and
warranties, or (ii) any third-party claim arising from use or access
to the advertisement under this Agreement or any material to which
users can link, or any products or services made available to users,
through the advertisement under this Agreement.
12. Cancellations. Except as
otherwise provided in the Insertion Order, the Insertion Order is
noncancelable by Advertiser. If Advertiser cancels the Insertion
Order, in whole or in part, Advertiser agrees to pay additional
short-term charges.
13. Construction. No term or
condition other than those set forth in the Standard Terms or in the
Insertion Order relating to advertisement scheduling and pricing
shall be binding on MarinaMate.com unless in a writing signed by
duly authorized representatives of the parties. In the event of any
inconsistency between the Insertion Order and the Standard Terms,
the Standard Terms shall control. This Agreement constitutes the
entire agreement between the parties concerning the subject matter
hereof and supersedes all prior and contemporaneous agreements and
communications, whether oral or written, between the parties
relating to the subject matter hereof, and all past courses of
dealing or industry custom. The terms and conditions hereof shall
prevail exclusively over any written instrument submitted by
Advertiser, including Advertiser's insertion order, and Advertiser
hereby disclaims any terms therein, except for terms therein
relating to advertisement scheduling and pricing.
14. Confidentiality. "Confidential
Information" shall mean (i) advertisements, prior to
publication; (ii) the Insertion Order and any MarinaMate.com
statistics that shall be deemed MarinaMate.com Confidential
Information; and/or (iii) any information designated in writing, or
identified orally at time of disclosure, by the disclosing party as
"confidential" or "proprietary." During the term
of this Agreement, and for a period of two years following any End
Date, neither party will use or disclose any Confidential
Information of the other party except as specifically contemplated
herein. The foregoing restriction does not apply to information
that: (i) has been independently developed by the receiving party
without access to the other party's Confidential Information; (ii)
has become publicly known through no breach of this Section 14 by
the receiving party; (iii) has been rightfully received from a third
party authorized to make such disclosure; (iv) has been approved for
release in writing by the disclosing party; or (v) is required to be
disclosed by a competent legal or governmental authority.
15. Termination; Effect of
Termination. In the event of a material breach by Advertiser,
MarinaMate.com may terminate this Agreement immediately without
notice or cure period, without liability to MarinaMate.com. In the
event of any termination, Advertiser shall remain liable for any
amount due under an Insertion Order for advertisement delivered by
MarinaMate.com and such obligation to pay shall survive any
termination of this Agreement. If the parties contemplate any
provision to survive any termination or expiration of this
Agreement, such provision shall survive such termination or
expiration. At the request of the disclosing party, the receiving
party shall return all of the disclosing party's Confidential
Information to the disclosing party.
16. Miscellaneous. This
Agreement: (i) shall be governed by and construed in accordance with
the laws of the State of Pennsylvania, without giving effect to
principles of conflicts of law; and (ii) will not be governed by the
United Nations Convention of Contracts for the International Sale of
Goods. This Agreement may be amended only by a writing executed by a
duly authorized representative of each party. Advertiser shall make
no public announcement regarding the existence or content of the
Insertion Order without MarinaMate.com's prior written approval,
which approval shall not be unreasonably withheld. Any dispute
hereunder will be negotiated in good faith between the parties
within 45 days commencing upon written notice from one party to the
other. Any notices under this Agreement shall be sent to the
addresses set forth in the Insertion Order (or in a separate
writing) by facsimile or nationally recognized express delivery
service and deemed given upon receipt. The waiver of any breach or
default of this Agreement will not constitute a waiver of any
subsequent breach or default, and will not act to amend or negate
the rights of the waiving party. If any provision contained in this
Agreement is determined to be invalid, illegal, or unenforceable in
any respect under any applicable law, then such provision will be
severed and replaced with a new provision that most closely reflects
the original intention of the parties, and the remaining provisions
of this Agreement will remain in full force and effect.
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