I. INSERTION ORDERS AND LISTING AVAILABILITY
a. From time to time, parties may execute insertion orders ("IO"s) under which TaxiFareFinder ("TFF") will deliver advertisements ("Ad(s)") provided by an Advertiser or its Agency (collectively "Advertiser") to TFF's site(s) (the "Site") for the benefit of Advertiser. An IO will be binding only if accepted as provided in Section I(b) below. Each IO shall specify: (i) the type of listing purchased; (ii) the price for the applicable listing; (iii) the particular location where the Ad is to appear; and (iv) the start date of the campaign.
b. Acceptance of the IO and these Terms and Conditions will be made upon the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms and Conditions shall include paper, fax, or e-mail communication) approval of the IO by TFF and Advertiser; or (ii) the display of the first Ad by TFF, unless otherwise agreed upon in the IO.
II. AD PLACEMENT AND POSITIONING
a. The placement of an Ad is dependent upon the type of listing selected by the Advertiser (for example, a "Preferred Listing"). The number of listings offered, the placement of the Ads purchased under a particular listing, and the pricing for the various listings is subject to change at TFF's discretion. TFF will use reasonable efforts to provide Advertiser at least ten (10) business days prior notification of any changes in the applicable listing price. Should such a modification occur, with or without notice, Advertiser’s sole remedy for change or notice would be to immediately cancel the remainder of the IO without penalty within the 10-day notice period
b. Each Ad must conform to the requirements specified by TFF in the IO at the time the listing is purchased.
c. TFF will use reasonable efforts to provide Advertiser at least ten (10) business days prior notification of any material changes to the Site that would change the target audience or significantly affect the size or placement of the Ad specified in the affected IO. Should such a modification occur, with or without notice, Advertiser’s sole remedy for change or notice would be to immediately cancel the remainder of the IO without penalty within the 10-day notice period.
d. Advertiser hereby acknowledges that TFF does not guarantee any level of impressions or financial and/or business results.
III. PAYMENT
a. Payment. Prior to executing an IO, Advertiser will be required to complete a registration form which will include, among other things, credit card information for billing purposes. Advertiser's credit card will be charged automatically on a month-to-month basis until the campaign is terminated by either party as provided herein. The billing cycle will be based on the calendar month. The first month of the campaign may be prorated depending on the date the advertisement is initially activated.
b. Payment Date. The credit card on file will be billed during the final week of a given month for Ads to be displayed on the Site during the following month. Advertiser agrees to keep its credit card information current and to notify TFF immediately of any change(s) in the credit card to be charged. In the event a credit card charge is declined, display of the Ad will automatically be terminated for the following month until valid credit card information is provided and confirmed. In the event valid credit card information is not provided prior to the first of the following month, Advertiser hereby acknowledges that TFF may release the listing to another party.
c. Delinquent Payment. If Advertiser fails to make payment, Advertiser will be responsible for all reasonable expenses (including attorneys' fees) incurred by TFF in collecting such amounts.
d. Currency. All payments due hereunder are in U.S. dollars and are exclusive of any applicable taxes, for which Advertiser shall be responsible. Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to TFF may be shared by TFF with companies who work on TFF's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to TFF and servicing Advertiser's account.
e. Refunds. To the fullest extent permitted by law, refunds (if any) are at the discretion of TFF.
IV. CANCELLATION AND TERMINATION
a. Upon the serving of the first impression of the IO, Advertiser may cancel the IO for any reason, without penalty, by providing TFF notice of cancellation by the 25th of the month. For clarity and by way of example, written notice of cancellation received by TFF by January 25th will result in a cancellation effective February 1.
b. TFF may terminate an IO at any time if Advertiser is in material breach of its obligations hereunder that is not cured within ten (10) days after written notice thereof from TFF, except as otherwise stated in this Agreement with regard to specific breaches. If Advertiser does not cure a violation of a Policy within the applicable ten (10) day cure period after written notice, then TFF may terminate the IO associated with such breach upon written notice.
c. TFF reserves the right to deny any requested Ad, paid or unpaid, at its sole discretion. It further reserves the right to reject, suspend, or cancel any advertisement or Advertiser Material under certain conditions including, but not limited to (i) for failure to comply with its generally applicable policies concerning the technical specifications for and content of advertising (which include, but are not limited to, prohibitions on content that contains spyware or malware or refers to or promotes gambling, drinking, sex, or illegal drugs; (ii) if directed to do so by any law enforcement agency, court, or other governmental agency, or (iii) if it determines, in its sole discretion, that the advertisement may subject TFF to criminal or civil liability for any reason. The content of any landing page created by or hosted for Advertiser shall be subject to TFF's review and written approval. TFF's remedies under this Section shall be in addition to and not in exclusion of any other remedy set forth in this Agreement.
V. FORCE MAJEURE
a. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes.
b. If Advertiser's ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Advertiser's reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Advertiser shall make every reasonable effort to make payments on a timely basis to TFF, but any delays caused by such condition shall be excused for the duration of such condition. Subject to the foregoing, such excuse for delay shall not in any way relieve Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.
c. To the extent that a force majeure has continued for five (5) business days, either party has the right to cancel the remainder of the IO without penalty.
VI. AD MATERIALS
a. It is Advertiser's obligation to submit Advertising Materials in accordance with TFF's then existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with TFF's public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and material due dates) (collectively "Policies"). Advertising Materials must be submitted no later than five (5) business days prior to the start of the campaign ("Delivery Date"). TFF shall be relieved of its obligation to display or transmit such Advertiser Materials if Advertiser fails to deliver the Advertiser Materials by the Delivery Date. If Advertising Materials are late, Advertiser is still responsible for the media purchased pursuant to IO.
b. TFF reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in TFF's sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, TFF reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon TFF or any of its affiliates.
c. If Advertising Materials provided by Advertiser are damaged, lost, not to TFF's specifications, or otherwise unacceptable, TFF will use commercially reasonable efforts to notify Advertiser within a reasonable amount of time from its receipt of such Advertising Materials. Advertiser has five (5) business days from the date of notification by TFF to cure any such deficiency. Advertiser is still responsible for the media purchased pursuant to IO during the notice and cure periods specified.
d. TFF reserves the right to edit, refuse, reject or remove any Advertiser Materials at its discretion at any time.
e. Neither party will use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of these Terms and Conditions or an IO without the other’s prior written approval.
f. Advertiser is responsible for the selection and accuracy of the Advertiser Materials including accurate telephone numbers and/or any URL links. Advertiser hereby acknowledges that TFF is not responsible for the maintenance of Advertiser's Website(s) (if any).
g. Advertiser hereby grants to TFF a non-exclusive, non-transferable, worldwide, royalty-free license to use, perform, reproduce, display, transmit , and redistribute Advertiser Materials during the term of the campaign solely to display Advertiser Materials and all contents therein, including Advertiser's trademarks and logos, and links to Advertiser's website in accordance with the obligation under this Agreement.
VII. INDEMNIFICATION
a. Advertiser agrees to defend, indemnify and hold harmless TFF, its affiliates and its directors, officers, employees and agents from any and all losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Advertiser’s breach of Section X, violation of Policies, or the content or subject matter of any Ad or Advertising Materials to the extent used by TFF in accordance with these Terms and Conditions or an IO, including but not limited to allegations that such content or subject matter violates the right of a Third Party (including without limitation intellectual property rights), is false, misleading, indecent, illegal, threatening, defamatory or obscene, or violates any law, regulations or other judicial or administrative action.
b. If any action will be brought against TFF in respect to any allegation for which indemnity may be sought from the Advertiser, TFF will promptly notify Advertiser of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to Advertiser at Advertiser's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. TFF agrees that Advertiser will have sole and exclusive control over the defense and settlement of any such third party claim. However, Advertiser will not acquiesce to any judgment or enter into any settlement that adversely affects TFF's rights or interests without the prior written consent of TFF.
VIII. LIMITATION OF LIABILITY
a. In no event will TFF be liable for, or will Advertiser be entitled to a refund for, any downtime of the Site.
b. In no event will TFF be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever whether foreseeable or unforeseeable, based on claims of Advertiser, its appointees or its or their customers (including, but not limited to, claims for loss of profits, business interruption, loss of information, loss of goodwill, loss or corruption of date, use of or reliance on the services provided hereunder, stoppage of other work or impairment of other assets), arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, tort (including without limitation negligence), strict liability in tort or any other legal theory even if advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy. In no event will the aggregate liability that TFF may incur in any action or proceeding exceed the great of the total amount actually paid to TFF by Advertiser during the preceding year or $200. The limitations, exclusions and disclaimers set forth in this section will not apply only if and to the extent that the law or a court of competent jurisdiction requires liability under applicable law beyond and despite these limitations, exclusions and disclaimers.
c. If TFF fails to publish an Advertiser Materials in accordance with the schedule provided in the IO or in the event of any other failure, technical or otherwise of such Advertiser Materials to appear as provided in the IO, the sole liability of TFF, if any, and exclusive remedy of Advertiser shall be limited to, at TFF's sole discretion, placement of a mutually agreeable substitute Advertiser Materials at a later time in a comparable position or a pro rata refund of pre-paid advertising fees.
d. TFF will make reasonable efforts to timely update the Ad to reflect changes requested by the Advertiser. However, TFF makes no guarantee regarding the timing of any such updates and is not liable for any period of time during which the Ad reflects information previously provided by the Advertiser which, through no fault of TFF, has become inaccurate.
e. To the fullest extent permitted by law, TFF DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE.
IX. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS
a. Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the IO, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
b. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a party; (ii) was or becomes generally available to the public through no fault of the receiving party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
c. All personally identifiable information provided by individual web users who are informed that such information is being gathered solely on behalf of Advertiser pursuant to the Advertiser’s posted privacy policy is the property of Advertiser, is subject to the Advertiser's posted privacy policy, and is considered Confidential Information. Any other use of such information must be set forth in the IO signed by both parties.
d. TFF and Advertiser shall post on their respective Web sites their privacy policies and adhere to their privacy policies, which abide by the applicable laws. Failure by either party to continue to post a privacy policy or nonadherence to its own privacy policy is grounds for immediate cancellation of the IO by the other party.
e. Both parties at all times will comply with all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
X. MISCELLANEOUS
a. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in its Ads and Advertising Materials and that it holds all rights needed to permit the use, reproduction, display, transmission and distribution of the Advertiser Materials.
b. Advertiser may not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without TFF's prior written approval will be null and void. All terms and provisions of these Terms and Conditions and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
c. These Terms and Conditions and the related IO constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
d. In the event of any inconsistency between the terms of an IO and these Terms and Conditions, the terms of the IO shall prevail. All IOs shall be governed by the laws of the Commonwealth of Massachusetts. TFF and Advertiser agree that any claims, legal proceeding or litigation arising in connection with the IO (including these Terms and Conditions) will be brought solely in Middlesex County, Massachusetts, and the parties consent to the jurisdiction of such courts. No modification of these Terms and Conditions or any IO shall be binding unless in writing and agreed to by both parties. All rights and remedies hereunder are cumulative.
e. Any notice required to be delivered hereunder shall be deemed delivered three (3) days after deposit in U.S. mail, return receipt requested, one (1) business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to TFF and Advertiser shall be sent to the address specified in the IO.
f. Sections III, VII, VIII, IX, and X shall survive termination or expiration of this Agreement. In addition, each party shall return or destroy the other party’s Confidential Information and remove Advertising Materials and Ad tags upon the termination or expiration of this Agreement.
g. Advertiser and its agency, if applicable, shall be jointly and severably liable under the terms of this Agreement and the IO.
h. A waiver of any default of this Agreement is not a waiver of any subsequent default.
i. In the event any provision of this Agreement is found unenforceable, said provision will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect.
j. TFF may modify these terms at any time without liability and Advertiser's ongoing participation in the campaign after notice that these terms have changed constitutes Advertiser's acceptance of the new Terms.
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