miamitom, Inc. (“miamitom”, “Company”, “we” or “us”), whether directly or indirectly, owns and operates the miamitom.net website, portals and user interfaces and the services and content thereon (collectively, the “Site”). Your use of and access to the Site constitute your agreement to be bound by this Advertising Agreement (“Agreement”) and any additional rules and guidelines that we post on the Site. If you do not agree to be bound by this Agreement, then you must not use the Site. We may change this Agreement at any time and without any notice to you. We recommend that you periodically visit this page to review this Agreement. By using the Site after we post any changes, you agree to accept those changes, whether or not you actually reviewed them. As used in this Agreement, “Publisher” shall refer to each and every owner of websites represented by Company; “Advertiser” shall refer to you and your affiliates, successors and assigns.
- Non-Exclusive Representation. Advertiser hereby appoints Company as a non-exclusive representative for the sale of Advertising on Publisher owned Websites. Pursuant to the terms of this Agreement, Company and its authorized representatives shall have the right to place Advertiser’s Advertising on the Publisher’s Websites for the display of such Advertising. Advertiser agrees to cooperate with Company to facilitate Company’s performance of the services described in this Agreement.
- Term. The effectiveness of this Agreement and your appointment of Company as a non‐exclusive representative shall continue until terminated by either party. Either party may terminate these terms and conditions with or without cause upon notice to the other party. Upon termination: (i) each party will cease using each other’s corporate name, marks and/or logo; (ii) any final payment will be made in accordance with these terms and conditions; and (iii) Sections 10 through 15 will survive and remain in effect.
Advertiser’s Representations and Warranties. Advertiser represents and warrants that:
- It is authorized to bind Advertiser to the terms and conditions of this Agreement;
- It has the full legal authority to use and to authorize others to use all elements in and pertaining to the advertising submitted to Company (the “Advertising”), including without limitation (i) the names, likenesses, biographical information and/or any other identifying attributes of any individual who is identifiable in the Advertising; (ii) all elements of the Advertising that are subject to protection under any and all intellectual property law, including without limitation, the copyright, trademark, unfair competition and/or patent laws and regulations of any jurisdiction in which the Advertising may be exhibited; (iii) all “testimonials” (as that term is commonly understood in the advertising industry) and/or endorsements contained in the Advertising;
- The Advertising and all elements thereof are not subject to any third party claims, and the Advertising and all elements thereof have been fully cleared by Advertiser for all uses set forth herein, and no payments will be required to be made to any third party in connection with the use of the Advertising (or, if any such payments are required, Advertiser will be solely responsible therefor and indemnify and hold harmless Company in connection therewith);
- The Advertising, creative and all elements thereof, after being submitted to and approved by Company, shall not be altered prior to or during publication; and
- The Advertising shall not launch pop up windows or tabs, auto‐install executables, ActiveX, prompted executables, messages that prevent user navigation, hidden browser windows, audio played without user initiation, or other non‐specified and questionable media content. Violators of this restriction will be subject to immediate termination, legal action for user and brand damages, and a financial penalty by Company or its respective publishers. Agencies, Brokers, and Media Buyers representing advertisers are completely responsible for all and any such activity on this campaign and will be considered completely liable.
- Traffic Reports. Company will report Advertising served on Publisher websites to Advertiser using the miamitom Site (the “Reporting”). Payment to Company shall be due and payable at the rate and full amount provided for herein, based upon the measurement criteria (e.g. impressions, clicks, etc.) as reported to Advertiser by Company. Reporting is subject to audit by Company for preparation of Invoices.
- Billing & Collections. Payment must be made to Company before any Advertising shall be run. Billing and Invoices are based on the Reporting from the miamitom Site.
- Advertising Delivery. Company does not guarantee any given level of circulation, distribution, reach or readership for any advertisement.
- Rejection of Advertising. Company reserves the right, without any liability whatsoever, to reject, omit or exclude any Advertising for any reason at any time, with or without notice to Advertiser, and whether or not such Advertising was previously acknowledged, accepted or published.
- No Exclusivity. Advertiser expressly acknowledges that Company may represent other advertisers and agencies (including Company’s affiliates) and may secure the placement and exhibition of advertising, in a similar capacity to that contemplated hereunder, and nothing contained herein shall be construed to limit Company’s right to do so.
- Material Breach. Any breach by Advertiser of any representation, warranty or agreement in this Agreement and shall result in the forfeiture of Advertiser’s right to publish the Advertising, and shall further result in the forfeiture of any monetary deposit or credit of Advertiser.
- Indemnification. Advertiser agrees to indemnify and hold harmless Company, its affiliates, subsidiaries, successors and assigns from any claim, action, judgment, or liability, threatened or adjudicated, of any kind arising out of or in connection with any breach by Advertiser of any representation, warranty or agreement and Advertiser shall promptly reimburse Company for any sums, costs or expenses (including, without limitation, reasonable attorney’s fees and expenses, settlement costs and disbursements) incurred by Company in connection therewith.
- Limitation of Liability. Advertiser agrees that Company shall not be liable for (i) any delays in the delivery and/or non‐delivery of any Advertising placement; (ii) anything affecting the production of an Advertising placement in the event of an act of God, action by any government entity, network difficulties, electronic malfunction or any condition beyond the control of Company (iii) consequential damages of any nature whatsoever; and/or (iv) errors or omissions in the Advertising as it is exhibited to the public. 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 THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL COMPANY’S LIABILITY HEREUNDER EXCEED THE PAYMENTS MADE BY ADVERTISER DURING THE PRECEDING 12 MONTHS.
- Remedy at Law. In the event of any dispute arising out of or relating to this Agreement, Advertiser’s sole remedy shall be an action for damages at law. Advertiser expressly waives any and all equitable rights they may have hereunder, including without limitation any right to enjoin, rescind, terminate or otherwise interfere with Company’s delivery, placement and exhibition of any Advertising whatsoever.
- Legal Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, Company shall be entitled to reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may be entitled.
- Governing Law. The parties agree that this Agreement will be construed in all respects in accordance with the laws of the State of California applicable to agreements entered into and to be wholly performed therein, and, in the event of any dispute related to the subject matter of this Agreement, the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts located in the State of California, Los Angeles County.
- Notice. All notices and approvals desired or required to be given to either party hereunder shall be in writing and shall be deemed given when delivered via (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, (iv) by electronic mail to the address of the party specified in this Agreement or such other address as either party may specify in writing.
- Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent of the other in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
- Force Majeure. 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 (“Force Majeure”).
- Severability. If any term or provision of this Agreement is declared illegal, invalid or unenforceable, the parties intend that the remainder of this Agreement shall not be affected thereby and that, in lieu of any such stricken provision, there shall be added as a part hereof, a substitute provision as similar in substance to the illegal, invalid or unenforceable term or provision as may be possible.
- No Partnership. Nothing contained in this Agreement shall be construed to constitute a partnership or joint venture or any other fiduciary relationship. Neither party is the employee, agent, partner or joint venture of the other, it being understood and agreed that the relationship of the parties is that of independent contractors.
- Defaults; No Waiver. No waiver by either party of any default hereunder shall constitute a waiver by such party of any subsequent default, whether such subsequent default is similar in nature to any previously waived default. All remedies under this Agreement or under law or otherwise shall be cumulative and not alternative.
- Entire Agreement. This Agreement is intended by the parties hereto as a complete and final expression of their agreement and understanding with respect to the subject matter hereof and supersede all previous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter hereof.