| These terms and
conditions (the "Terms") are entered into between TACAM.org and its
affiliates ("TACAM") and the Sponsor and/or Agency ("Customer")
referenced on the corresponding insertion order ("IO"). If Customer is
an Agency, Agency represents and warrants that (1) Sponsor has
authorized Agency to enter into this Agreement on Sponsor's behalf and
to represent the Sponsor within the scope of this Agreement, and (2)
Sponsors agrees to be bound by the terms of this Agreement, including
but not limited to paying TACAM for advertisements delivered pursuant
to this Agreement and any corresponding IOs. These Terms shall be
deemed incorporated by reference into any IO submitted by Customer. The
Terms and IOs collectively form the "Agreement."
1. Term; Renewal. The term of these Terms commences on the
Start Date set forth in the IO ("Start Date") and continues in force
and effect until terminated pursuant to section 2. Except as expressly
set forth in the IO, any renewal of the IO, acceptance of any
additional IOs, and pricing for such renewal or additional IOs shall be
at TACAM's sole discretion.
2. Termination; Effect of Termination. TACAM shall have the
right to terminate any IO (and this Agreement), in whole or in part,
with or without cause, at any time except as provided in an IO. Once an
IO is submitted, Customer cannot terminate it for any reason unless
expressly provided in the IO. Upon termination for any reason, (i)
Customer shall remain liable for any amount due under an IO for
advertisements delivered by TACAM and such obligation to pay shall
survive termination of this Agreement, (ii) at the request of either
party, the other party shall return all Confidential Information and
(iii) Sections 2-9 shall survive termination.
3. Confidentiality. Customer shall make no public
announcement regarding the existence or content of the IO without
TACAM's prior written approval. Furthermore, during the term of this
Agreement, and for a period of two years following any IO End Date,
neither party will use or disclose any Confidential Information of the
other party except as provided herein. "Confidential Information"
includes (1) advertisements, prior to publication, (2) IOs, (3) any
TACAM statistics and information designated by either party in writing,
or identified orally at time of disclosure as "confidential" or
"proprietary." The foregoing restriction does not apply to information
that has become publicly known through no breach by a party, or has
been: (1) independently developed without access to the other party's
Confidential Information; (2) rightfully received from a third party;
(3) approved in writing for release by the disclosing party; (4)
required to be disclosed by law or by a governmental authority.
4. No Warranty. TACAM MAKES NO WARRANTY, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING AND OTHER
SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF
NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
5. Limitations of Liability; Force Majeure. In no event shall
TACAM be liable for any act or omission, or any event directly or
indirectly resulting from any act or omission, of Customer, or any
third parties (if any). EXCEPT FOR THE PARTIES' INDEMNIFICATION AND
CONFIDENTIAILITY OBLIGATIONS HEREUNDER, (I) IN NO EVENT SHALL EITHER
PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL,
INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHETHER IN CONTRACT,
TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (II) EACH PARTY'S AGGREGATE
LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT
PAID OR PAYABLE TO TACAM FROM CUSTOMER FOR THE IO GIVING RISE TO THE
CLAIM. Without limiting the foregoing and except for payment
obligations, neither party shall have any liability for any failure or
delay resulting from any condition beyond the reasonable control of
such party, including but not limited to governmental action or acts of
terrorism, earthquake or other acts of God, labor conditions, and power
failures.
6. Customer's Responsibilities. Customer is responsible for
the selection of keywords, the content and display of advertisements,
URL links, and IOs including any trademark issues associated therewith.
Customer shall ensure that(a) Customer holds all rights needed to
permit the use, reproduction, display, transmission and distribution of
the advertisement and all contents therein ("Use") by TACAM; and (b)
TACAM's Use, Customer's keywords, 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 (i) violate any
criminal laws or third party rights; (ii) encourage conduct that would
constitute a criminal offense or violate any law; or (iii) give rise to
civil liability.
7. Advertisement Placement and Modification. Customer agrees
(unless otherwise specified in an IO) that advertisements will be
displayed whenever the selected keywords are entered in a search query,
either alone or in combination with other terms. Customer may, in good
faith, modify key words so long as the total value of an IO is not
materially reduced. If TACAM receives a complaint from a third party
alleging that the keywords or advertisements corresponding to an IO
infringe the third party's trademark or other proprietary rights, TACAM
shall have the right to disable the keywords or advertisements at issue.
8. Indemnification. Each party agrees to indemnify the other
party and its respective agents, affiliates, subsidiaries, directors,
officers, employees and applicable third parties (e.g., syndication
partners, licensors, licensees, consultants, and contractors)
("Indemnified Person(s)") from and against any third party claim,
liability, loss and expense (including damage awards, settlement
amounts, and reasonable legal fees and expenses incurred by the
indemnifying party in such defense) ("Liabilities"), arising out of the
breach by the indemnifying party of its obligations under this
Agreement and failure to comply with applicable law in the performance
of its obligations hereunder during the Term. The indemnification
obligations regarding the Indemnified Person(s) and Liabilities shall
exist only if the indemnified party (the "Indemnitee") (1) promptly
notifies the indemnifying party (the "Indemnitor") of any claim, (2)
provides the Indemnitor with reasonable information and cooperation in
defending the claim, and (3) gives the Indemnitor full control and sole
authority over the defense and settlement of such claim. The Indemnitee
may join in defense with counsel of its choice at its own expense. The
Indemnitor shall not reimburse the Indemnitee for any expenses incurred
without prior written approval.
9. Priority; Miscellaneous. These Terms shall supersede any
and all conflicting terms in an IO unless a provision of these Terms
expressly allows for control by the IO. This Agreement: (1) shall be
governed by the laws of Michigan, except for its conflicts of laws
principles. Any dispute or claim arising out of or in connection with
this Agreement shall be adjudicated in Oakland County, Michigan. This
constitutes the entire agreement between the parties with respect to
the subject matter hereof. Each party hereto is duly authorized to
enter into this Agreement and perform its obligations hereunder. Any
modifications to this Agreement must be made in a writing executed by
both parties. The parties will negotiate any dispute hereunder in good
faith within thirty (30) days of receiving written notice; this
obligation shall not eliminate any remedies available to the parties.
Any notices shall be sent to the addresses set forth in the IO by
facsimile or overnight courier and shall be 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. If any
provision herein is unenforceable under any applicable law, then such
provision will be modified to reflect the intention of the parties, and
the remaining provisions of this Agreement will remain in full force
and effect. Any reference to the term "partner" herein does not denote
a legal partnership relationship, but one of independent contractors.
Customer may not resell, assign, or transfer any of its rights
hereunder. Any such attempt shall automatically terminate the
Agreement, without liability to TACAM.
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