Terms of Service - Marketer

Marketer Terms of Service

1. PARTIES

   Pursuant to this agreement (the "Agreement"), LinkExperts, Inc. ("LinkExperts") of 71 West 23rd St. Suite 1608, New York, New York 10010 and you ("Advertiser", "Client", or "Customer") agree to the following terms and conditions for the purchase of online advertising inventory ("Inventory") from the LinkExperts Network ("Network") of 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 subscription details elected by Advertiser at checkout (the "Subscription").

2. REPRESENTATIONS AND WARRANTIES

   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 as contemplated herein; (2) the Creative does not violate any law, rule or regulation, including, without limitation, those governing false or deceptive advertising, sweepstakes, gambling, comparative advertising, or trade disparagement; (3) the Creative does not contain any misrepresentation, or content that is defamatory or violates any rights of privacy or publicity; (4) The Creative is relevant and consistent with its own content, products and services; (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 Publishers' websites; (6) Customer provides notice for, and fully discloses, its privacy policies and practices to visitors to its website(s) and engaging in the activities contemplated hereunder will not violate such Customer's privacy policy; and (7) the Creative does not and will not infringe any third party's copyright, trademark, patent or other proprietary right. Customer grants LinkExperts and Publishers the right and license to use, reproduce, transmit, and distribute the Creative.

3. PAYMENTS

   Advertiser agrees that its credit card will be charged for the full cost of its Subscription upon submitting the Subscription. All payments made pursuant to this Agreement and the Subscription shall be denominated in U.S. dollars. Advertiser shall also be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to provision of the services rendered (except for taxes on LinkExperts' income). Advertiser agrees to pay LinkExperts all charges at the prices then in effect for its Subscription and authorizes LinkExperts to charge its credit card for the Service.

   The Subscription consists of an initial period, for which there is a one time charge, followed by recurring period charges as agreed to by Advertiser. By entering into this Agreement, Advertiser acknowledges that its Subscription has an initial and recurring payment feature and accepts responsibility for all recurring charges prior to cancellation. LINKEXPERTS MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM ADVERTISER, UNTIL ADVERTISER PROVIDES PRIOR NOTICE THAT IT HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE LINKEXPERTS REASONABLY COULD ACT.

   The Subscription will be automatically extended for successive renewal periods of the same duration as the Subscription term originally selected, at the then-current rate. Advertiser's non-termination of its Subscription reaffirms that LinkExperts is authorized to charge Advertiser's credit card on file with LinkExperts. LinkExperts may submit those charges for payment and Advertiser will be responsible for such charges. This does not waive LinkExperts' right to seek payment directly from Advertiser. Charges may be payable in advance, in arrears, per usage, or as otherwise described when Advertiser initially signed up for a Subscription.

4. REFUND & CANCELATION POLICY

   Customer may terminate this Agreement upon providing 30 days advance written notice to LinkExperts. LinkExperts may terminate this Agreement or any Subscription immediately, with or without cause, without prior notice, and Customer agrees that, notwithstanding such termination, it shall remain liable to LinkExperts for all fees owed and costs incurred pursuant to the Subscription prior to termination hereof.

5. QUALITY CONTROL

   Client represents, warrants and covenants that it holds the necessary intellectual property rights and/or licenses to permit the use of the Content by LinkExperts and any and all Publishers and that Client will not publish, distribute or otherwise provide to LinkExperts for use hereunder any content that: (a) infringes on any third party's copyright, patent, trademark, trade secret or other proprietary rights; (b) violates any law, statute, ordinance or regulation regarding the creation and marketing of online materials including, without limitation, those governing false and/or deceptive advertising; (c) is defamatory or trade libelous; (d) is pornographic or obscene; (e) contains viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.

   Client will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the Creative. In providing LinkExperts with the ability to publish and distribute the Creative, Client acknowledges that LinkExperts is acting only as a passive conduit for the distribution and publishing of the Creative. Client retains complete discretion over the content published and distributed by Client. LinkExperts has no obligation to Client, and undertakes no responsibility to review the Creative or user-generated content to determine whether any such content may result in liability to third parties.

   LinkExperts reserves the right to refuse service to any new or existing Customer, in its sole discretion, with or without cause. Further, LinkExperts 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. LinkExperts does not accept Creative from Customers that produce or provide adult content. LinkExperts does not accept Customers that engage in, promote or facilitate illegal activities. LinkExperts may in its sole discretion refuse or restrict use of any Creative that it deems inappropriate or requires special handling. This Agreement and the Subscription is cancelable by LinkExperts immediately if Customer fails to disclose, conceals or misrepresents itself in any way.

6. CAMPAIGN DATA

   LinkExperts is the sole owner of all Inventory, Campaign, and aggregate web user data collected by LinkExperts. Customer is granted unrestricted rights to all data available online in Customer's account.

7. CAMPAIGN ACCOUNTING

   Campaigns purchased on the LinkExperts Network are served, tracked and reported by LinkExperts. LinkExperts shall be the governing counting authority, and all prepaid and billed amounts due shall be per LinkExperts' invoice.

8. INDEMNIFICATION

   Advertiser agrees to indemnify, defend and hold harmless LinkExperts, and its parents, subsidiaries, agents, publishers, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including, without limitation, attorneys' fees and other related costs and expenses) asserted by any third party due to, arising from, related to, or in connection with the services provided pursuant to this Agreement, as well as any breach by Advertiser of the terms of this Agreement including, without limitation, any representation or warranty contained herein; any fraudulent conduct committed by Advertiser; and/or any intellectual property claims associated with any and all copy and images supplied by Advertiser and its associated usage thereof. The indemnification obligations hereunder shall survive any termination of this Agreement.

9. WARRANTY DISCLAIMER

   LinkExperts and Publishers provide the Campaign and all services performed hereunder "AS IS" and hereby expressly disclaim all warranties, expressed or implied, regarding LinkExperts' and Publishers' services or any portion thereof, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. Without limiting the generality of the foregoing, LinkExperts and Publishers specifically disclaim any warranty regarding: (1) the number of persons who will access the content; and (2) any benefit Client might obtain from the Campaign. LinkExperts does not guarantee continuous or uninterrupted service to the Campaign. LinkExperts shall follow a uniform policy to avoid discrimination in its dealings with Advertiser. Although Company makes every effort to uphold the highest standards of online marketing conduct, it will not be liable to Advertiser for any losses incurred by Advertiser through promotional activity engaged in by LinkExperts on behalf of Advertiser pursuant to this Agreement. The limitations on liability hereunder shall survive any termination of this Agreement.

10. LIMITATION OF LIABILITY

    Neither LinkExperts 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 LinkExperts 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. In no event will LinkExperts or Publishers be liable for any direct, indirect, incidental, actual, consequential, special, punitive or exemplary damages, including, but not limited to, loss of profits, or loss of business opportunity, even if such damages are foreseeable and whether or not LinkExperts has been advised and/or otherwise has knowledge of the possibility thereof. The total liability of LinkExperts and Publishers arising out of the Campaign or the services provided thereunder, whether based in contract, tort or otherwise, shall not exceed (1) the amount paid to LinkExperts for Campaigns run on Customer's behalf or (2) $5,000, whichever is less. The limitations on liability hereunder shall survive any termination of this Agreement.

11. GENERAL TERMS AND CONDITIONS OF USE; PRIVACY POLICY

    Your use the services provided hereunder is subject to the General Terms and Conditions of Use (the "Terms and Conditions") our Privacy Policy (the "Privacy Policy"). You represent and warrant that you have read the Terms and Conditions and the Privacy Policy and they are reasonable and acceptable to you. Your acceptance of these Terms is also your consent to the Terms and Conditions and the information practices in our Privacy Policy.

12. GENERAL

    This Agreement, including the Subscription, the Terms and Conditions, the Privacy Policy and all attachments or other documents 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. In the event of a conflict between the terms and conditions set forth in this Agreement and the Terms and Conditions, the terms and conditions set forth in this Agreement shall govern. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither LinkExperts 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 (1) in writing and signed by the parties, (2) by Advertiser's online acceptance of update terms or (3) by Advertiser's continued participation as a LinkExperts advertiser hereunder after an update version of this Agreement has been posted on LinkExperts' website. 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

    Advertiser may not assign this Agreement without LinkExperts' prior written consent. Any attempt to assign this Agreement or the Subscription without such consent shall be null and void. LinkExperts may assign all or a portion of its duties and obligations hereunder to any affiliate, successor and/or other third party. Subject to the foregoing, the terms of this Agreement will be fully binding upon, inure to the benefit of and be enforceable by, the parties' respective successors, heirs, executors, administrators and permitted assigns.

14. GOVERNING LAW

    This Agreement shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding its conflict of law rules or principles. The jurisdiction and venue for and all disputes related to or arising hereunder shall be the state courts located in the City and State of New York.

15. ABILITY TO ENTER INTO AGREEMENT

    Customer represents and 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.