DataSphere's Provision of Services and Reservation of Rights
The Terms of Your Relationship with DataSphere
This Advertising Agreement (this "Agreement") is entered into as of the date above written by and between DataSphere Technologies, Inc., a Delaware corporation ("DataSphere"), and the undersigned advertiser (the "Advertiser", “you” or “your”). Any additional or different terms including terms in any purchase order or order confirmation will have no effect unless expressly agreed to in writing by DataSphere and notice of objection to them is hereby given. Neither DataSphere’s acknowledgment of a purchase order nor DataSphere’s failure to object to conflicting, different, or additional terms and conditions in a purchase order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof.
Authorization and Payment
You hereby authorize the Agreement as described above. You assume full responsibility for payment of all charges for said advertisements and services, whether placed individually or through your authorized agents or delegates. By your electronic signature below, you confirm that you are authorized to bind your company or firm to the terms set forth in this Agreement, that all information you have submitted in connection with this Agreement is complete and correct, that the terms set forth herein become a binding contract upon you, your company or your firm and that you and your company or firm each have the necessary financial ability and willingness to pay for all goods and/or services promptly and in accordance with all applicable terms and conditions. Accordingly, you acknowledge that if you elect to terminate prior to the end of the term you will remain responsible for any remaining monthly payments through the end of the term (or the Early Termination Fee) and will not be entitled to a refund of any amounts previously paid. If you fail to pay by the agreed due date, DataSphere shall be entitled to claim interest on any overdue amount at the rate of 1.5% per month. If you do not pay any overdue amount within fifteen (15) days of a written delinquency notice, DataSphere may suspend performance of any or all services, without limitation or waiver of any other right or remedy available under this Agreement or at law. If DataSphere is required to retain a collection agency or attorney to collect any overdue payment, all reasonable collection costs, including but not limited to attorneys’ fees, will be paid by you.
Term and Termination
The term of this Agreement shall be a fixed period specified in the table above and, unless either party provides the other with written notice of termination at least thirty (30) days prior to the end of the initial Agreement term, the Agreement shall renew for successive one-month extension terms thereafter. During this month-to-month extension period, either party may terminate the Agreement by providing written notice to the other at least seven (7) days prior to the end of the then-current monthly period. DataSphere reserves the right, at the time of each term (initial or extension term) renewal, to adjust the pricing under this Agreement as set forth above. Either party may terminate this Agreement at any time in the event of a material breach of the Agreement by the other party where such breaching party does not cure such breach within thirty (30) days of written notice thereof. In the event of a termination for DataSphere’s uncured material breach of the Agreement, DataSphere will refund to Advertiser any fees applicable to the period during which DataSphere was in breach of the Agreement.
To cancel your subscription, please send written notice via email (cancel@datasphere.com) or fax (425.746.1435). Any cancellation before the end of the initial Agreement term (as specified in the table above) will incur an early termination fee of 40% of the remaining charges for the initial Agreement term (the “Early Termination Fee”) that is due within ten (10) days of cancellation. For the avoidance of doubt, if you cancel the Agreement before the initial term (other than at the time of renewal with proper notice as provided in the paragraph above), you have the option to pay the early termination fee with no further payment obligation (other than any past due amounts outstanding); however, if you cancel and fail the pay the early termination fee, you will be fully responsible for all the outstanding and remaining charges for your applicable term.
Your Responsibilities
Advertiser hereby warrants and represents that (a) it will not buy broadcast air time under this Agreement for any of the purposes described in subsection (a) of the second paragraph of the section below entitled “DataSphere’s Provision of Services and Reservation of Rights”; (b) it has full power and authority to enter into this Agreement and comply with the terms and conditions hereof; (b) the person executing this Agreement on its behalf has been properly authorized and empowered to enter into this Agreement; (c) its listings and website and any content or copy therein will not infringe the intellectual property rights of any third party; (d) the performance of its obligations under this Agreement is not and will not be in violation of any other contract, agreement or understanding to which it is a party or by which it is bound, including but not limited to any code of ethics or professional code of responsibility or ethics (e.g., bar association ethics rules); (e) it will at all times comply with all the terms and conditions of this Agreement; and (f) it will at all times comply with all Legal Requirements when fulfilling its obligations under this Agreement.
"Legal Requirements" means all applicable federal, state, local, and foreign laws, rules, regulations, governmental permits and other binding determinations of any governmental authority, whether they are in effect on the date of this Agreement or come into effect at any time before this Agreement is terminated. Legal Requirements include, but are not limited to federal, state and local laws and regulations pertaining to (i) the Payment Card Industry (PCI) Data Security Standard; (ii) the CAN-SPAM Act of 2003; (iii) the Children’s Online Privacy Protection Act of 2008 (COPPA); (iii) other data privacy regulations or standards including but not limited to the Network Advertising Initiative (NAI)’s industry privacy standards; and (iv) the laws or regulations of the FTC and state Unfair and Deceptive Trade Practices Acts or "Little FTC Acts”.
You will have five (5) business days to approve your advertisement. If we don’t hear from you within five days, we will automatically approve your ad and you will no longer have an opportunity to make any additional edits.
Product- or Service-Specific Information (these provisions will only be applicable if you have purchased or subscribed for the product or service referenced below)
If you have ordered an on-site video with your advertising package, DataSphere will attempt to contact you by phone and/or email to schedule your video shoot using the contact information above. If we are unable, after at least two attempts to reach you, to schedule an on-site video shoot to take place within 45 days of the date of sale, Advertiser agrees that DataSphere may, at its sole discretion, substitute a video montage with still images and voiceover in full satisfaction of the on-site video requirement listed in this Agreement. DataSphere retains all right, title and interest in and to the video but you may purchase the video at DataSphere’s list price for such video, which will vary depending on video type (on-site or montage).
Your coupons will be provided through the DataSphere Coupon Network™ to partners such as Coupons.com, unless you inform your sales executive that you do not wish to participate. The DataSphere Coupon Network is a service which allows advertisers to create, manage and distribute promotional coupons across a network of websites, email and mobile applications (“Partners”). The Partners to which the coupons are distributed and the rules associated with distribution or coupon management will vary over time and DataSphere reserves the right, in its sole discretion and at any time, to make any changes to these or other aspects of the service; provided, however, that DataSphere will use all commercially reasonable efforts to ensure that the DataSphere Coupon Network maintains an appropriate mix, quantity and quality of Partners in order to ensure that it remains a value-added service for our Partners and customers. DataSphere reserves the right to charge additional fees for enhanced versions of the DataSphere Coupon Network service in the future (for example, if DataSphere introduces a premium version of the service, which may carry a greater burden of third-party costs and expenses than the regular version, or in the context of a performance-based variant of the service) and/or to place a limit on the number of coupons printed within a specific time period. You will always have the option to opt-out of the DataSphere Coupon Network, for any reason, by accessing your account at http://my.datasphere.com.
DataSphere’s Provision of Services and Reservation of Rights
DataSphere agrees to use commercially reasonable efforts to provide the services outlined in the Advertising Package table above to the Advertiser but makes no express or implied representations or warranties regarding DataSphere or any services or information provided by any employee or agent of DataSphere. Any implied warranties of merchantability, fitness for a particular purpose, and non-infringement are expressly disclaimed and excluded. In addition, DataSphere makes no representation that the operation of any DataSphere website will be uninterrupted or error-free, and DataSphere will not be liable for the consequences of any interruptions, downtime or errors.
DataSphere also reserves the right to (a) refuse to run any advertisement that (i) is obscene, pornographic, profane, fraudulent, libelous, defamatory, abusive or harassing, (ii) promotes violence or contains hate speech, (iii) infringes upon or otherwise violates the proprietary rights of another entity or (iv) advertises or promotes any illegal activity, service or merchandise; and (b) cancel the Agreement with seven (7) days’ written notice (DataSphere will refund any outstanding balance on a pro-rata basis) if, in DataSphere’s sole discretion, its agreement or arrangement with the applicable media company or publisher owning or operating the websites on which Advertiser’s listings are displayed terminates, expires, or changes in such a way as to have a material adverse effect on DataSphere’s ability to deliver the promised placement.
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER DATASPHERE NOR ITS SUPPLIERS WILL NOT BE LIABLE TO ADVERTISER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR ACTUAL OR ANTICIPATED REVENUE, PROFITS OR LOST BUSINESS), EVEN IF DATASPHERE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL DATASPHERE'S CUMULATIVE LIABILITY TO ADVERTISER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED $1,000.
Miscellaneous
Neither the rights nor the obligations arising under this Agreement are assignable by Advertiser, and any such attempted assignment or transfer shall be void and without effect. DataSphere has the right to freely assign or transfer this Agreement. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. The United Nations Convention on the Sale of Goods does not apply to this Agreement. DataSphere and Advertiser consent to exclusive jurisdiction and venue in the federal courts sitting in the King County, Washington, unless no federal subject matter jurisdiction exists, in which case the parties consent to exclusive jurisdiction and venue in the Superior Court of King County, Washington. Each party waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on any party in the manner authorized by applicable law or court rule. Any dispute resolution proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action, unless both you and DataSphere specifically agree to do so in writing. In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect. Any notice to Advertiser may be provided by email. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly canceled. Except as otherwise expressly provided in this Agreement, any modifications of this Agreement must be in writing and agreed to by both parties.