1) PARTIES: Pursuant to this Agreement, AdsToGo, Inc. ("AdsToGo") of 631-C St. Paul Street, Baltimore, MD 21202, and Customer ("Customer") shall agree to the following terms and conditions for the purchase of online advertising inventory ("Inventory") from AdsToGo Network ("Network") Publishers ("Publishers") and delivery of Customer's advertising materials and linked URLs ("Creative") to consumer web browsers via said Inventory. This includes the serving, tracking and reporting of each purchase ("Campaign"). Campaign details are as stated in the Campaign Insertion Order ("IO"). In the event of a difference between the terms of the Customer Agreement and the IO, the IO shall take precedence.
2) REPRESENTATION: Customer represents and warrants that: (1) it is the owner or is licensed to use the entire contents and subject matter contained in the Creative; (2) the Creative is free of any "worm", "virus" or other device that could impair or injure any person or entity; (3) the Creative does not violate any law or regulation governing false or deceptive advertising, sweepstakes, gambling, comparative advertising, or trade disparagement; (4) the Creative does not contain any misrepresentation, or content that is defamatory or violates any rights of privacy or publicity; (5) Customer is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply to display of the Creative on Sites; and (6) the Creative does not and will not infringe any copyright, trademark, patent or other proprietary right. Customer grants AdsToGo and the Publisher the right and license to use, reproduce, transmit, and distribute the Creative.
AdsToGo and Publisher jointly represents and warrant that: (1) Publisher is the owner or is licensed to use the entire contents and subject matter contained in the Inventory; (2) the Inventory does not violate any law or regulation; (3) the Inventory does not contain any misrepresentation, or content that is defamatory or violates any rights of privacy or publicity; (4) Publisher is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply; and (5) the Inventory does not and will not infringe any copyright, trademark, patent or other proprietary right. Publisher grants AdsToGo and Customer the right and license to transmit the Creative to the Inventory.
3) TRAFFICKING: Trafficking of Campaigns on the Network may require Publisher or AdsToGo approval before placement within the Network after Customer has purchased the Campaign and supplied the Creative. All Campaigns placed on the Network are subject to Network capacity limitations which include software, hardware, bandwidth, inventory availability, payment terms, credit history, creative performance, and market pricing limitations. If the IO indicates Automatic Campaign Extension, Customer hereby grants AdsToGo the right to extend the end date of the Campaign, in AdsToGo's discretion, to complete delivery of the contracted Campaign budget.
4) PUBLIC RELEASE: Neither Customer nor AdsToGo shall release any information regarding Customer's relationship with AdsToGo, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of both Customer and AdsToGo.
5) QUALITY CONTROL: AdsToGo reserves the right to refuse service to any new or existing Customer, in its sole discretion, with or without cause. AdsToGo reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Creative for any reason at any time, with or without notice to the Customer and regardless of whether such Creative was previously accepted or published. AdsToGo does not accept Customers that engage in, promote or facilitate illegal activities. AdsToGo may in its sole discretion refuse or restrict use of any Creative that it deems appropriate or requires special handling. This Agreement is cancelable by AdsToGo immediately if Customer fails to disclose, conceals or misrepresents itself in any way.
6) CAMPAIGN DATA: AdsToGo is the sole owner of all Inventory, Campaign, and aggregate web user data collected by AdsToGo. Customer is granted unrestricted rights to all data available online in Customer's account.
7) CAMPAIGN ACCOUNTING: Campaigns purchased on the AdsToGo Network are served, tracked and reported by AdsToGo. Unless otherwise stated in the IO, AdsToGo shall be the governing counting authority, and all prepaid and billed amounts due shall be per AdsToGo.
8) INDEMNIFICATION: AdsToGo and Customer hereby agree to indemnify, defend and hold harmless each other and each other's officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (a) for libel, defamation, violation of right of privacy or publicity, copyright infringement, or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the use of Network; (b) or arising out of any material breach by AdsToGo, or Customer of any duty, representation or warranty under any agreement between AdsToGo and Customer.
9) DAMAGES: In no event shall either party be liable for special, indirect, incidental, or consequential damages, including, but not limited to, loss of data, loss of use, or loss of profits arising thereunder or from the provision of services.
10) WARRANTY DISCLAIMER: AdsToGo and Publishers do not make and hereby expressly disclaim all warranties, express or implied, with respect to any matter whatsoever, including, without limitation, the performance of any software programs incidental to services rendered by AdsToGo, services provided thereunder, or any output or results thereof. AdsToGo and Publishers specifically disclaim any implied warranty of merchantability or fitness for a particular purpose.
11) LIMITATION OF LIABILITY: Neither AdsToGo nor Publishers will be subject to any liability whatsoever for (a) any failure to provide reference or access to all or any part of the Creative due to systems failures or other technological failures of AdsToGo or of the Internet; (b) delays in delivery and/or non-delivery of a Campaign, including, without limitation, difficulties with a Publisher or website, difficulties with a third-party server, or electronic malfunction; and (c) errors in content or omissions in any Creative provided by Customer. The total liability of AdsToGo and Publishers arising out of this campaign or the services provided thereunder, whether based in contract, tort or otherwise, shall not exceed (1) the amount paid to AdsToGo for Campaigns run on Customer's behalf or (2) $10,000, whichever is less.
12) GENERAL: This Agreement, including all attachments which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Applicable sections shall survive expiration or early termination of this Agreement. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither AdsToGo nor Customer shall hold itself out as the agent of the other, except for that specified in this Agreement. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement shall be effective only if in writing and signed by the parties. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
13) ASSIGNMENT: Customer may not assign this agreement, in whole or in part, without written consent from AdsToGo. Any reasonable request to assign this agreement in the event of a significant change in ownership of Customer, or such similar event, will be granted Any attempt to assign this Agreement without such consent will be null and void.
14) GOVERNING LAW: This Agreement will be governed by and construed in accordance with the laws of the State of Maryland.
15) ABILITY TO ENTER INTO AGREEMENT: Customer warrants that Customer (or Authorized Representative of Customer) is at least 18 years of age, has the appropriate authority to enter into this agreement, and that there is no legal reason that Customer cannot enter into a binding contract.