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SurfWax, Inc. Advertising Terms and Conditions
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These terms and conditions (the "Terms") are entered into between SurfWax, Inc. and its affiliates ("SurfWax") and the Advertiser and/or Agency ("Advertiser") referenced on the corresponding insertion order ("IO"). If Advertiser is an Agency, Agency represents and warrants that (1) Advertiser has authorized Agency to enter into this Agreement on Advertiser's behalf and to represent the Advertiser within the scope of this Agreement, and (2) Advertiser agrees to be bound by the terms of this Agreement, including but not limited to paying SurfWax for advertisements delivered pursuant to this Agreement and any corresponding IOs. These Terms shall be deemed incorporated by reference into any IO submitted by Advertiser. The Terms and IOs collectively form the "Agreement." 1. Term; Renewal. The term of these Terms commences on the Start Date set forth in the IO ("Start Date") and continues in force and effect until terminated pursuant to section 2. Except as expressly set forth in the IO, any renewal of the IO, acceptance of any additional IOs, and pricing for such renewal or additional IOs shall be at SurfWax's sole discretion. 2. Termination; Effect of Termination. SurfWax shall have the right to terminate any IO (and this Agreement), in whole or in part, with or without cause, at any time except as provided in an IO. Once an IO is submitted, Advertiser cannot terminate it for any reason unless expressly provided in the IO. Upon termination for any reason, (i) Advertiser shall remain liable for any amount due under an IO for advertisements delivered by SurfWax and such obligation to pay shall survive termination of this Agreement and (ii) Sections 2-10 shall survive termination. 3. No Warranty. SurfWax makes no warranty, express or implied, including without limitation with respect to advertising and other services, and expressly disclaims the warranties or conditions of noninfringement, merchantability and fitness for any particular purpose. 4. Limitations of liability; force majeure. IN NO EVENT SHALL SURFWAX BE LIABLE FOR ANY ACT OR OMISSION, OR ANY EVENT DIRECTLY OR INDIRECTLY RESULTING FROM ANY ACT OR OMISSION, OF ADVERTISER, OR ANY THIRD PARTIES (IF ANY). EXCEPT FOR THE PARTIES' INDEMNIFICATION HEREUNDER, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (II) EACH PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID OR PAYABLE TO SURFWAX FROM ADVERTISER FOR THE IO GIVING RISE TO THE CLAIM. WITHOUT LIMITING THE FOREGOING AND EXCEPT FOR PAYMENT OBLIGATIONS, NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND THE REASONABLE CONTROL OF SUCH PARTY, INCLUDING BUT NOT LIMITED TO GOVERNMENTAL ACTION OR ACTS OF GOD. 5. Advertiser's Responsibilities. Advertiser is responsible for the content and display of advertisements, URL links, and IOs including any trademark issues associated therewith. Advertiser shall ensure that (a) Advertiser holds all rights needed to permit the use, reproduction, display, transmission and distribution of the advertisement and all contents therein ("Use") by SurfWax; and (b) SurfWax's Use and any products or services made available to users through the advertisement will not (i) violate any criminal laws or third party rights; (ii) encourage conduct that would constitute a criminal offense or violate any law; or (iii) give rise to civil liability. Advertiser is responsible for meeting requirements set forth in the “Ad Specifications” provided by SurfWax. SurfWax reserves the right to refuse and/or terminate any advertisements (IOs) that fail to meet the “Ad Specifications” provisions. 6. Advertisement Placement and Modification. Advertiser agrees (unless otherwise specified in an IO) that advertisements will be displayed on all pages across a specified “topic” (whereas topic is defined as a subdomain represented by subdomain.surfwax.com). Advertiser agrees not to hold SurfWax liable for placement of advertisements on pages which advertiser finds objectionable. SurfWax makes best effort to exclude objectionable content from pages. 7. Website Traffic. SurfWax makes no guarantees with regards to traffic, site availability, click-through rates, or advertisement performance. Past traffic performance is not indicative of future traffic performance. 8. Pricing. Advertising rates are determined by SurfWax and are subject to change at any time. SurfWax will make its best effort to notify Advertiser seven (7) business days prior to a change in relevant advertising rates. Advertising rates include placement on SurfWax page and link to web site as specified by Advertiser. Refunds will be granted at the sole discretion of SurfWax. 9. Indemnification. Each party agrees to indemnify the other party and its respective agents, affiliates, directors, officers, employees and applicable third parties from and against any third party claim, liability, loss and expense (including damage awards, settlement amounts, and reasonable legal fees and expenses incurred by the indemnifying party in such defense), arising out of the breach by the indemnifying party of its obligations under this Agreement and failure to comply with applicable law in the performance of its obligations hereunder during the Term. 10. Priority; Miscellaneous. These Terms shall supersede any and all conflicting terms in an IO unless a provision of these Terms expressly allows for control by the IO. This Agreement: (1) shall be governed by the laws of California. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in San Mateo County, California. This constitutes the entire agreement between the parties with respect to the subject matter hereof. Each party hereto is duly authorized to enter into this Agreement and perform its obligations hereunder. Any modifications to this Agreement must be made in a writing executed by both parties. The parties will negotiate any dispute hereunder in good faith within thirty (30) days of receiving written notice; this obligation shall not eliminate any remedies available to the parties. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default. If any provision herein is unenforceable under any applicable law, then such provision will be modified to reflect the intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Any reference to the term "partner" herein does not denote a legal partnership relationship, but one of independent contractors. Advertiser may not resell, assign, or transfer any of its rights hereunder. Any such attempt shall automatically terminate the Agreement, without liability to SurfWax. July, 2004 |
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Copyright SurfWax, Inc. 2004 |
