TERMS AND CONDITIONS (3/19/2021)
These terms & conditions for advertising on the Gardens With Wings website are entered into by and between Take Notice, Inc. (the “Company”) and the advertiser (or agency acting on its behalf) (“Advertiser”) set forth on the Ad Space Purchase to which these terms and conditions are attached and which is incorporated herein by reference (collectively, the “Agreement”).
The following general terms and conditions govern the placement of advertising by the Advertiser on the www.gardenswithwings.com site and affiliated sites, which are owned, operated, or licensed by Company.
- “Advertisement” means the text, possible web link, and/or graphic (JPEG) file or file of such other format as Company may designate from time to time, supplied by Advertiser to be published by Company on the Gardens With Wings website and which may contain a link to Advertiser’s website or to a website specified by Advertiser.
- “Advertising Program” means an Advertiser’s particular selection and purchase of advertising space and services for publication of its Advertisements on the Website, as reflected on the first page of this Agreement.
- “Advertising Specifications” means the specifications for Advertisements set forth on the Website: https://gardenswithwings.com/collaboration
- “Website” means a collection of HTML documents accessible by the public via the Internet at the Universal Resource Locator (“URL”) https://www.gardenswithwings.com, or such other URL as may be designated from time to time in writing by Company.
- “Rates” means the information regarding Company advertising services, rates, and technical requirements for Advertiser Submissions for publication on the Website. Rate information can be found on a https://gardenswithwings.com/collaboration.
- “Advertiser Submission” means all information and items necessary for Company’s publication of Advertiser’s Advertisements, including initial Advertising Program information, Advertisements, changes and updates to Advertisements, and replacement or new Advertisements.
Company shall, subject to the terms and conditions of this Agreement, place Advertiser’s Advertisements on the Website according to the Advertising Program selected by Advertiser on Purchase Ad Space Form on Website. Advertiser grants Company a nonexclusive, worldwide license to use the Advertisements on the Website in order to carry out its obligations under this Agreement. Advertiser shall provide the Advertisement in a form and manner as described in the Advertising Specifications. Unless otherwise agreed by Company, Advertiser shall supply all custom or proprietary artwork or graphics to Company as required for the Advertisement.
3. Advertiser Submissions
(a) Company must receive all Advertiser Submissions at least ten (10) business days prior to the scheduled date of publication for each Advertisement (the “Submission Deadline”). (b) All Advertiser Submissions and any linking URL must be submitted in electronic format conforming to the Advertising Specifications. (c) All changes to and/or cancellations of Advertiser Submissions must be made in writing and received by Company prior to the Submission Deadline. (d) Company shall have the right to approve the form and content of all Advertisements and no changes by Advertiser shall be made to any Advertisement without Company’s prior written consent. e) The word “Advertisement” will appear above ads which in the opinion of Company might be confused with Company’s content. F) Advertiser will provide at its expense all Advertisements.
COMPANY RESERVES THE RIGHT WITHOUT LIABILITY, TO REJECT, OMIT OR EXCLUDE ANY ADVERTISEMENT FOR ANY REASON AT ANY TIME, WHETHER OR NOT SUCH ADVERTISEMENT WAS PREVIOUSLY ACKNOWLEDGED, ACCEPTED, OR PUBLISHED.
4. Advertising Specifications
a) Company reserves the right to change any of its advertising specifications at any time and without notice to Advertiser. Unless otherwise set forth on the insertion order, positioning and scheduling of Advertisements shall be at Company’s sole discretion. Advertiser acknowledges that Company has made no guarantees with respect to any usage statistics, levels of impressions or viewership levels that will be delivered. Company reserves the right to cancel any advertising, space or time reservation, or position commitment at any time without liability. In addition, Company may reject any link embedded or URL displayed in any Advertisement.
5. Payment Terms
Payments are due within fifteen (15) days from the date of the invoice and prior to publication date, or as otherwise agreed in writing between Advertiser and Company. Post-due amounts will bear interest at the rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if lower). Company reserves the right to change its advertising rates at any time and without notice to Advertiser.
- Upon cancellation, Advertiser must immediately pay to Company all amounts due for Advertisements (a) distributed as of the cancellation date; (b) to be distributed in the following thirty (30) days; and (c) an amount equal to twenty-five percent (25%) of the amounts due for Advertisements scheduled to have been displayed thereafter.
6. Advertiser Warranty and Indemnification
(a) Advertiser hereby represents and warrants to Company that: (i) Advertiser’s Advertisements do not now, and will not, violate any criminal laws or any rights of any third parties, including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity; and (ii) Advertiser’s Advertisements do not now, and will not, include any material that is: unlawful, harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically, 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 local, state, national or international law. (b) Advertiser shall indemnify and hold Company, its owners, officers’ agents, directors, employees, and distributors harmless from and against all actions, claims, damages, costs and expenses (including attorney’s fees) arising out of or with respect to: (i) any breach of the foregoing warranties; (ii) any other third-party claim in connection with Advertiser’s Advertisements; or (iii) the products or services provided by Advertiser to its customers.
The parties acknowledge each other’s exclusive right, title, and interest in and to their respective trademarks, service marks, trade names, copyrights, patents, and other proprietary intellectual property (the “Marks”) and each party disclaims any interest in the other party’s Marks. Advertiser represents and warrants that Advertiser is the owner or the duly authorized representative of the owner of its Marks. Advertiser shall be responsible for the protection and enforcement of Advertiser’s rights in its Marks in any Advertisement.
During the term of this Agreement and any renewals, and for a period of one (1) year thereafter, neither party shall use or disclose any Confidential Information of the other party, except as specifically contemplated by this Agreement. “Confidential Information” is defined to include (i) any Advertisement prior to publication; (ii) any of Company’s website statistics, such as the number of visitors, the kinds of visitors, etc.; and (iii) any information designated in writing by the disclosing party as ‘confidential’. Confidential Information does not include information that (i) has been independently developed by the receiving party; (ii) has become publicly known through no wrongful act of the receiving party; (iii) has been legally received from a third party authorized to make such a disclosure; (iv) has been approved for release by the disclosing party in writing; or (v) is required to be disclosed by law.
9. Relationship of the Parties
Nothing in this Agreement shall be considered to create a partnership, joint venture or agency relationship between Company and Advertiser. Company is an independent contractor with respect to Advertiser.
10. Disclaimer of Warranties and Limitation on Damages
COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE WEBSITE FOR A PARTICULAR PURPOSE INCLUDING, WITHOUT LIMITATION, THE TYPE OR NUMBER OF WEBSITE USERS. COMPANY SHALL NOT BE LIABLE FOR THE CONTENT OF ANY ADVERTISEMENT ON THE WEBSITE OR THE WEBSITES OR PAGES LINKED TO THE SITE, NOR FOR ANY LOSS, COST, DAMAGE OR EXPENSE (INCLUDING ATTORNEY FEES) INCURRED BY ADVERTISER IN CONNECTION WITH THE PLACEMENT OF ADVERTISEMENTS ON THE WEBSITE, INCLUDING WITHOUT LIMITATION, FOR ANY TECHNICAL MALFUNCTION OR COMPUTER ERROR OR OTHER INJURY, DAMAGE OR DISRUPTION TO ADVERTISER’S ADVERTISEMENTS. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL COMPANY’S LIABILITY EXCEED THE TOTAL AMOUNT PAID TO COMPANY BY ADVERTISER UNDER THIS AGREEMENT.
11. Cancellation Policy; Termination
(a) The term of this Agreement commences on the date it is received and accepted by Company and, unless earlier terminated in accordance herewith, will continue in effect for the duration of the Advertising Program. This Agreement may not be renewed. If Advertiser is interested in continuing advertising with the Company, a new Agreement will be signed. Rates will be subject to updates and changes and must be agreed to by both parties in the new Agreement. (b) In the event of a breach by Advertiser of any of its obligations hereunder, Company may terminate this Agreement immediately upon written notice to Advertiser. In the event of a breach by Company of any of its obligations hereunder, Advertiser may terminate this Agreement upon thirty (30) days written notice to Company; oral cancellation will not be accepted under any circumstances. (c) If this Agreement is terminated by Company for breach by Advertiser, Advertiser shall remain liable for the value of the payments which are due or would otherwise become due and payable under the terms of this Agreement as fully performed. If this Agreement is terminated by Advertiser for breach by Company, Advertiser shall remain liable solely for the value of the payments which are due for advertising services already provided hereunder. Upon expiration or termination of this Agreement for any reason, each receiving party will promptly and at the direction of the other disclosing party either destroy or return to disclosing party and will not take or use, any and all records (in any form, format, or medium) containing or relating to Confidential Information. (d) These terms & conditions cannot be amended or changed by the advertiser except where advertiser has returned the prior written authorization to do so by Company.
12. General Terms
(a) This Agreement may not be assigned or otherwise transferred by Advertiser without the express written consent of the Company, whose consent shall not be unreasonably withheld or delayed. (b) This Agreement constitutes the entire Agreement between the parties, and supersedes any prior agreements or understandings, whether oral or written, between the parties with respect to the subject matter of this Agreement. (c) This Agreement may only be amended or modified by an instrument in writing, signed by both parties. (d) No waiver of any provision of this Agreement shall be deemed a waiver of that provision in the future, nor shall it be deemed a waiver of any other term or provision of this Agreement. (e) This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. (f) Should any provision of this Agreement, or the application thereof, to any extent, be held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement, or alternative applications thereof, shall not be affected and shall continue to be valid and enforceable to the fullest extent permitted by law or equity. (g) This agreement will be governed, construed, and enforced in accordance with the laws of the State of Ohio, without reference to its conflict of laws principles. It cannot be modified except in a writing that is signed by duly authorized representatives of both parties. (h) Each party shall perform all other acts and execute and deliver all other documents as may be necessary or appropriate to carry out the intent and purposes of this Agreement. (i) All rights, obligations and provisions of this Agreement that by their terms apply to time periods after the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement, including without limitation, paragraphs 5, 6, 7, 9, 10, and 11. (j) Except for Advertiser’s obligation to make payment hereunder, neither party hereto shall be required to perform any obligation hereunder that is directly or indirectly prevented by delays of vendors or suppliers, strikes, lockouts, fires, labor disputes, floods, accidents, war, orders or decrees of any court or other governmental authority, or any other causes whatsoever beyond the reasonable control of such party, and the time for performance thereof shall be extended by the number of days such performance is so prevented; provided, however, that the party so prevented from performing shall use reasonable efforts to remedy with all reasonable dispatch the cause or causes preventing it from performing. (k) This Agreement may be executed by electronic signature. Any party executing this Agreement by electronically, shall, within five (5) days after request therefor, provide the requesting party with a hard copy signature. (l) Agency: If Advertiser is using an advertising agency in connection with this Agreement, Advertiser and such agency will be jointly and severally liable hereunder. The entity signing this Agreement warrants that it is duly authorized and has the full power to bind Advertiser, and agrees to indemnify, defend, and hold harmless Company from any and all claims, losses, damages or costs (including attorneys’ fees) arising out of any breach of the foregoing warranty. Advertiser will be solely responsible for any commission due to any agency. (j) User Information: Company shall own all right, title and interest in and to any user or usage data or information (including any personally identifiable, transactional, and/or “clickstream” data) collected via or related to any of the Advertisements through the Gardens With Wings website or other media. Advertiser will have no rights in or to any such information under this Agreement.
Any party executing this Agreement by facsimile or electronically, shall, within five (5) days after request therefor, provide the requesting party with a hard copy signature.
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