TERMS OF USE

Section 1. Introduction

These Terms and Conditions are entered into by you, (“Advertiser”), and Adsimilate Marketing, Inc. regarding the display and distribution of listing advertisement(s) by Adsimilate Marketing, Inc. These Terms and Conditions together with any executed insertion order will be known as the (“Agreement”). Terms and Conditions may be updated from time to time, please check back regularly to be sure that you have the current version. By continuing to allow Adsimilate Marketing, Inc. to display and distribute advertisements after such modified Terms and Conditions have been posted, you agree to these Terms and Conditions, as modified.

Section 2. Advertisements and Advertising Content

Adsimilate Marketing, Inc. will display the advertisements, text links, graphical links, or other advertising content provided or approved by advertiser (together with the related keywords, the “Advertising Content”). Advertiser agrees that its advertisements will conform to Adsimilate Marketing, Inc.’s specifications and editorial guidelines. Advertiser is solely responsible for creating the Advertising Content. The advertiser represents that it will choose keywords that do not violate any third party’s trademarks, other intellectual property rights or other rights and/or will obtain licenses to use any third party trademarks as keywords. advertiser grants to (i) Adsimilate Marketing, Inc. and members of the Adsimilate Marketing, Inc. Network (as defined below) the right to display, perform, transmit and promote the Advertising Content and to make internal copies as necessary to perform the foregoing (ii) users of Adsimilate Marketing, Inc. websites and its distribution network members’ websites (collectively, the Adsimilate Marketing, Inc. Network) the right to access and use the Advertising Content and any content and/or services directly linked to the Advertising Content. Adsimilate Marketing, Inc. and Adsimilate Marketing, Inc. Network members may reject or remove any particular advertisement or Advertising Content for any or no reason.

Section 3. Distribution

Advertiser understands that the advertisements may appear on various site(s) within the Adsimilate Marketing, Inc. network. The breadth of distribution of the Advertising Content may change during the term of this agreement for any reason or no reason, including that Adsimilate Marketing, Inc. may change the members of the Adsimilate Marketing, Inc. Network from time to time without notice, and Adsimilate Marketing, Inc. may adopt or discontinue one or more modes of distribution or may change or discontinue sites, site pages or methods or modes of advertisement delivery. Your advertisements may appear in a variety of contexts on the Adsimilate Marketing, Inc. Network, such as on search results pages, meta-search results pages, content or article pages, and in contextually-relevant locations on the Adsimilate Marketing, Inc. Network. Because of the variety of types of distribution on the Adsimilate Marketing, Inc. Network and its frequent changes, we cannot guarantee that your advertisement(s) will appear in any particular type of placement, or that it will be displayed in any particular context or in response to any particular behavior. Where possible, Adsimilate Marketing, Inc. will discount your bid(s) to the greatest extent possible while still achieving the best possible position (given your bid amount) for your ads on Adsimilate Marketing, Inc.’s and its distribution network partners’ sites. With respect to the position of your ads on its distribution network partners’ sites, Adsimilate Marketing, Inc. cannot ensure the correct bid pricing to achieve the best possible position (given your bid amount). In all cases, Adsimilate Marketing, Inc. will not exceed advertiser’s maximum bid(s). With respect to keyword-targeted ads, advertisements may appear for the specific keywords advertisers selects, as well as for variations on those keywords, as determined by Adsimilate Marketing, Inc. technology.

Section 4. Term; Cancellation or Termination

For accounts with an insertion order, the term of this agreement will be set forth in the insertion order. If there is no insertion order, the term will end when terminated by either party in accordance with the terms and conditions of this agreement. Unless otherwise set forth in the relevant insertion order (for accounts with an insertion order), either party may terminate the agreement at any time for any reason or no reason upon giving written notice to the other party, with such termination to be effective as soon as Adsimilate Marketing, Inc. can remove all of advertiser’s advertisements, but no later than five (5) business days after a party gives written notice. Adsimilate Marketing, Inc. may terminate this agreement immediately with or without notice to advertiser (i) if Adsimilate Marketing, Inc. is unable to successfully charge advertiser’s credit card for any amount described in Section 5, for credit card accounts, or (ii) if any amount invoiced to advertiser has not been paid when due, for invoice accounts.

Section 5. Billing; Payment

Invoice Accounts. Adsimilate Marketing, Inc. will invoice advertiser monthly for clicks on Advertising Content. Payment in full will be due thirty (30) days after the date of the invoice. If Adsimilate Marketing, Inc., in its sole discretion, determines that advertiser’s credit condition warrants, Adsimilate Marketing, Inc. may require additional information and/or advance payment. If advertiser wishes to increase or exceed the budget amount in an approved insertion order, advertiser will submit an electronic mail message to Adsimilate Marketing, Inc. in order to document advertiser’s agreement to such increase.
Credit Card Accounts. Advertiser must maintain a valid credit card in its online account. Advertiser authorizes Adsimilate Marketing, Inc. to charge its credit card for all charges to its account, including any recurring payment. Advertiser understands that this authorization is valid until the effective time of termination of this agreement. Advertiser is responsible for maintaining up-to-date credit card information in its account. Advertiser’s account will be debited for each click on its advertisements as determined by Adsimilate Marketing, Inc.’s click tracking technology. If Adsimilate Marketing, Inc. is unable to refill advertiser’s account because advertiser’s credit card is no longer valid, or for any other reason, Adsimilate Marketing, Inc. may in its sole discretion (i) suspend advertiser’s advertisements from the Adsimilate Marketing, Inc. Network, or (ii) terminate this agreement in accordance with Section 4. Advertiser will promptly update all information to keep its account and credit card information (including a valid credit card number, current billing address, current email address, etc.) current, complete and accurate, and will promptly notify Adsimilate Marketing, Inc. if its credit card is cancelled. If advertiser’s credit card expires, advertiser will continue to be responsible for payment of charged amounts until advertiser either changes its credit card information or terminates the account. Advertiser agrees to retain, either by printing or otherwise saving, a copy of this agreement, which provides the terms of this authorization. If the daily budget allocated to a campaign is reached, Adsimilate Marketing, Inc. will not charge advertiser for the display of advertisements associated with that campaign for the rest of such day.
All Accounts. All fees described in this agreement exclude any and all sales, use, property, license, value added, excise or similar tax (and any related duties, tariffs, imposts and similar charges) that may be due as a result of the transactions contemplated by this agreement. Advertiser will be responsible for paying all such taxes and charges. Advertiser will have only 60 days from the date of an invoice or charge to dispute that invoice or charge; after that time advertiser will be deemed to have waived any objections to the invoice or charge. Invoices and charges will be determined solely based on Adsimilate Marketing, Inc.’s click tracking technology. Advertiser may use a third party to track clicks on advertisements. In the event that the third party’s measurements for clicks on advertisements differ from those tracked by Adsimilate Marketing, Inc. by more than 10% over an invoiced or charged period, within the thirty (30) day period following the end of such period Adsimilate Marketing, Inc. and advertiser will participate in a reconciliation effort between the third party and Adsimilate Marketing, Inc. regarding the discrepancy, make a good faith effort to resolve such discrepancy and, if any changes are made to Adsimilate Marketing, Inc.’s tracking as a result, amend the invoice or credit the account accordingly. Refunds (if any) are at the discretion of Adsimilate Marketing, Inc. and will be granted only in the form of advertising credit on the Adsimilate Marketing, Inc. Network. Advertiser will dispute any invoice in accordance with this section, and agrees not to dispute any charges with its credit card company or otherwise initiate charge-back proceedings if such dispute or charge-back would cause advertiser to be in violation of this section.

Section 6. Collections

In the event of any legal action to collect amounts owed by advertiser under this agreement, Adsimilate Marketing, Inc. will be entitled to reimbursements for all costs incurred, including reasonable court costs and attorney’s fees and expenses.

Section 7. Online Account

Adsimilate Marketing, Inc. will provide a password-protected online account to allow advertiser to monitor the performance of campaigns and make changes to elements of campaigns. Advertiser is solely responsible for controlling access to the password-protected account and for maintaining the confidentiality of the password, and will be required to pay for any charges or traffic fees incurred as a result of changes made through the online account.

Section 8. Limitation of Liability

EXCEPT WITH RESPECT TO OBLIGATIONS UNER SECTION 9 BELOW, (I) UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT THE INDEMNIFIED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED FOR IN THIS AGREEMENT AND (II) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THE TOTAL AMOUNT PAID OF DUE AND PAYABLE (PLUS APPLICABLE FEES AND COSTS) TO ADSIMILATE MARKETING, INC. UNDER THIS AGREEMENT.

Section 9. Indemnification

Each party agrees to indemnify, defend and hold harmless the other party, its subsidiaries, affiliates, partners, officers, directors, employees and agents, from any and all liability, damages and settlements due to third party claims or causes of action, including reasonable legal fees and expenses (collectively “Liabilities”), arising out of or related to the indemnifying party’s breach of any of its representations or warranties in this agreement. Advertiser agrees to indemnify, defend and hold harmless Adsimilate Marketing, Inc., its subsidiaries, affiliates, partners, officers, directors, employees and agents, from any Liabilities arising from all content or material on any web site associated with any Advertising Content, advertiser’s web site(s) and advertiser’s order processing, billing, fulfillment, shipment, collection and other customer support associated with any products or services offered, sold or licensed through any web site associated with any Advertising Content.

Section 10. Representations and Warranties

Representations and Warranties. Advertiser represents and warrants that (i) Advertiser holds the necessary corporate power, permits and right to grant all right granted to Adsimilate Marketing, Inc. under this Agreement; (ii) neither the use, reproduction, distribution, or transmission of the Advertising Content, nor any material or service available on or through Advertising Content, nor any material or service available on or through advertiser’s website will (a) violate any foreign, federal, state or local law or regulation or any rights of any third party, (b) contain any material that is harmful, abusive, hateful, obscene or threatening nor (c) constitute false or fraudulent advertisement and that a reasonable basis exists for all claims concerning the performance of products and services offered; (iii) the Advertising Content complies with Adsimilate Marketing, Inc.’s advertising guidelines (iv) advertiser’s execution of this agreement, and its performance of obligations and duties hereunder, will not violate any agreement to which advertiser is a party or is otherwise bound; and (v) advertiser possesses all authorizations, approvals, consents, licenses, permits, certificates or other rights and permissions necessary to display its website(s) and purchase, display and distribute (and allow others to display and distribute) Advertising Content for such website(s).

Section 11. Adsimilate Marketing, Inc. Representation and Warranties

Adsimilate Marketing, Inc. Representations and Warranties. Adsimilate Marketing, Inc. represents and warrants that it holds the necessary rights to use the Adsimilate Marketing, Inc. Network for display and reproduction of the advertising content for the purpose of this agreement. ADSIMILATE MARKETING, INC. MAKES NO OTHER REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ADSIMILATE MARKETING, INC’S SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABLILITY OR FITNESS FOR PARTICULAR PURPOSES AND ANY IMPLIED WARRANTIES ARISING FROM COUSE OF DEALING OR COURSE OF PERFORMANCE. Without limiting the generality of the foregoing, Adsimilate Marketing, Inc. specifically disclaims any warranty regarding (i) the number of persons who will access the advertising content and (ii) any benefit advertiser might obtain from including the advertising content within the Adsimilate Marketing, Inc. Network. The performance estimates, if any, on the insertion order are not guarantees, and actual performance may be higher or lower than the estimates provided. Adsimilate Marketing, Inc. cannot warrant that the display of the advertising content or the link to the advertiser web content will be uninterrupted or error-free. Adsimilate Marketing, Inc. cannot guarantee that an advertisement will be displayed in response to any given keyword search. Adsimilate Marketing, Inc. specifically disclaims any warranty regarding the location and prominence of advertisements within the Adsimilate Marketing, Inc. Network, including within any search results displayed thereon.

Section 12. Confidentiality

The terms and conditions of this agreement, as well as any click-through or user data derived from this agreement or its performance, are confidential to Adsimilate Marketing, Inc., and advertiser agrees not to disclose them to any third party under any circumstances, except as required by law and with prior written notice to Adsimilate Marketing, Inc. Neither party will issue any press release or public announcement of the terms or existence of this agreement without the prior written consent of the other party, except that Adsimilate Marketing, Inc. may reference advertiser as a client and include advertiser’s name in marketing materials.

Section 13. Jurisdiction; Choice of Law

The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in Onondaga County, NY in connection with any action arising under this agreement. This agreement will be interpreted, construed and enforced in all respects in accordance with laws of NY State, without regard to its conflicts of laws provisions or to the actual state or county of incorporation or residence of the parties.

Section 14. Miscellaneous

In event of any express conflict between the provisions of the insertion order and these terms and conditions, the provisions of the insertion order will apply. Adsimilate Marketing, Inc. will not be liable for delay or default in displaying advertisements if such delay or default is caused by conditions beyond its reasonable control including without limitation casualty, network or telecom failures and acts of God. Adsimilate Marketing, Inc. retains all rights to ownership of URL descriptions that it creates, the Adsimilate Marketing, Inc. directories and all adaptations, translations or modifications thereto. In the event that any provision of this agreement conflicts with the law under which this agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the parties to this agreement, such provision will be deemed to be restated to reflect as nearly as possible to original intentions of the parties in accordance with applicable law, and the remainder of this agreement will remain in full force and effect. The failure of either party to insist upon or enforce strict performance by the other party, of any provision of this agreement, or to exercise any rights under this agreement, will not be construed as a waiver or relinquishment of such party’s right to enforce any such provision or right in any other instance. Advertiser may not assign this agreement, in whole or in part. Adsimilate Marketing, Inc. and advertiser are independent contractors, and neither Adsimilate Marketing, Inc. nor advertiser is an agent, representative or partner of the other. This agreement sets forth the entire agreement between advertiser and Adsimilate Marketing, Inc., and supersedes any and all prior agreements (whether written or oral) of Adsimilate Marketing, Inc. and advertiser with respect to the subject matter set forth herein. Except as set forth in Section 1 above, this agreement may only be modified, or any rights under it waived, by a written document or online agreement executed by both parties.
If advertiser and Adsimilate Marketing, Inc. have signed a separate agreement for the delivery of relevant and advertising that is still in effect, then in the event of any express conflict between the provisions of that other agreement and these Terms and Conditions, such provisions of that other agreement will govern.