These terms and conditions 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 Amusement Consultants. Rates and the
Terms are subject to change without notice. Amusement Consultants
reserves the right to refuse or cancel any Insertion Order,
without cause, at any time. The 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.
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.
Terms of Payment
Order must be paid in advance of the advertisement Start
Date set forth in the Insertion Order. Amusement Consultants
will invoice Advertiser as set forth in the Insertion Order.
Payment as set forth in the Insertion Order shall be made
to Richard Skaretka at SiteBox.net 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 attorneys' fees) incurred by Amusement Consultants
in collecting such amounts. All payment amounts 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
Amusement Consultants against) any applicable US 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 Amusement Consultants).
Participant shall promptly furnish Amusement Consultants with
tax receipts evidencing the payment of any taxes referred
to in the preceding sentence. Amusement Consultants 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.
Positioning
Except as otherwise expressly provided in the Insertion Order,
positioning of advertisements within the Amusement Consultants
web site or on any page is at the sole discretion of Amusement Consultants.
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 Amusement Consultants sole discretion.
Pricing for any renewal period is subject to change by Amusement
Consultants from time to time.
No Assignment or Resale of Ad Space
Advertiser 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 Amusement
Consultants.
Provision of Advertising Materials
(a) Advertiser will provide all materials for the advertisement
in accordance with Amusement Consultants policies in effect
from time to time, including without limitation the manner
of transmission to Amusement Consultants and the lead-time
prior to publication of the advertisement. Amusement Consultants
shall not be required to publish any advertisement that is
not received in accordance with such policies and reserves
the right, at Amusement Consultants sole discretion, to charge
Advertiser, at the rate specified in the Insertion Order,
for inventory held by Amusement Consultants 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 Amusement Consultants can
reasonably begin publication of the advertisement set forth
in the Insertion Order. All changes to advertisement must
be made in writing to Sales@SiteBox.net
and prior to the lead-time deadline. Advertiser hereby grants
to Amusement Consultants 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.
Statistics
Unless specified in the Insertion Order, Amusement Consultants
makes no guarantee with respect to usage statistics or levels
of impressions for any advertisement. Advertiser acknowledges
that delivery statistics provided by Amusement Consultants
are the official and definitive measurements of Amusement
Consultants 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 Amusement Consultants or have any effect on this
Agreement. An "impression" means each occurrence of a display
of an advertisement.
Right to Reject Advertisement
All contents of advertisements (including those served by
Third Parties) are subject to Amusement Consultants approval.
Amusement Consultants 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 Amusement Consultants that any placement
thereof may subject Amusement Consultants to criminal or civil
liability).
No Warranty
AMUSEMENT CONSULTANTS 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.
Limitations of Liability
In the event that Amusement Consultants fails to publish
an advertisement in accordance with the schedule provided
in the Insertion Order, or in the event that Amusement Consultants
fails to deliver the number of impressions specified in the
Insertion Order (if any) by the End Date 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 Amusement Consultants
and exclusive remedy of Advertiser shall be limited to, at
Amusement Consultants 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
impressions are delivered. In no event shall Amusement Consultants
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 AMUSEMENT CONSULTANTS BE LIABLE
UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, LOST
PROFITS, INDIRECT OR OTHER DAMAGES, WHETHER BASED IN CONTRACT,
TORT OR OTHERWISE, EVEN IF AMUSEMENT CONSULTANTS HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. AMUSEMENT
CONSULTANTS AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY
CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY Amusement Consultants
FROM ADVERTISER FOR THE INSERTION ORDER GIVING RISE TO THE
CLAIM. Without limiting the foregoing, Amusement Consultants
shall have no liability for any failure or delay resulting
from any governmental action, fire, flood, insurrection, earthquake,
power failure, riot, explosion, alien invasions, acts of God,
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 Amusement Consultants. Advertiser
acknowledges that Amusement Consultants 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.
Advertiser's Representations; Indemnification
Advertiser represents and warrants to Amusement Consultants,
and Third Parties (if any), that Advertiser holds all necessary
rights to permit the use of the advertisement by Amusement Consultants 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 services 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 Amusement Consultants 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 of 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.
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 any additional short-rate charges.
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 Amusement Consultants
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.
Confidentiality
"Confidential Information" shall mean (i) advertisements,
prior to publication; (ii) the Insertion Order and any Amusement Consultants statistics that shall be deemed Amusement Consultants
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.
Termination; Effect of Termination
In the event of a material breach by Advertiser, Amusement Consultants may terminate this Agreement immediately without notice
or cure period, without liability to Amusement Consultants. In
the event of any termination, Advertiser shall remain liable
for any amount due under an Insertion Order for advertisement
delivered by Amusement Consultants 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.
Miscellaneous
This Agreement: (i) shall be governed by and construed in
accordance with the laws of the State of California, 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 Amusement Consultants 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.
Phone: 914-576-7800
Fax: 914-576-3620
Email:info@amusementconsultants.com