This Advertising Agreement ("Agreement")
is entered into by and between you and DogFriendly.com, Inc., a
California corporation (the "Company"), with principal
address at P.O. Box 1017 Anchor Point, AK 99556, WHEREAS, Company is engaged in the business of providing
Internet products and services, including advertising services;
and WHEREAS, Advertiser desires to purchase advertising services
from Company as specified in this Agreement; NOW, THEREFORE, the
parties agree to the following terms and conditions:
(a) "Advertisement" means the text,
possible web link, and/or graphic (GIF or JPEG) file or file of
such other format as Company may designate from time to time,
supplied by Advertiser to be published by Company on Company's
Web Site and which may contain a link to Advertiser's web site or
to a web site specified by Advertiser.
Program" means an Advertiser's particular selection and
purchase of advertising space and services for publication of its
Advertisements on Company's Web Site.
(c) "Company's Web
Site" means a collection of HTML documents accessible by the
public via the Internet at the Universal Resource Locator ("URL")
http://www.dogfriendly.com, or such other URL as may be
designated from time to time in writing by Company.
Card" means the information regarding Company advertising
services, rates, and technical requirements for Advertiser
Submissions for publication on Company's Web Site, a copy of
which Rate Card may be attached hereto.
Submission" means all information and items necessary for
Company's publication of Advertiser's Advertisements, including
initial Advertising Program information, Advertisements, changes
and updates to Advertisements, and replacement or new
2. COMPANY SERVICES.
Services. Company will publish Advertiser's Advertisements on
Company's Web Site according to the level of service selected
from the Rate Card or as specified in the Advertising Program.
Advertiser shall retain all right, title and interest in and to
its Advertisements (including the copyright ownership thereof),
and Advertiser hereby grants Company a royalty-free worldwide
license, without payment or other charge therefor, to use,
display, perform, reproduce and distribute the Advertisements,
and such other licenses with respect to the Advertisements
necessary to fulfill the intention of this Agreement.
According to the ad(s) chosen, Advertisements are based on
location on Company's web site or based on number of page views
or a combination of both.
(c) No Warranty. Company may at its
sole discretion provide reports to Advertiser. Company makes no
warranty, express or implied, as to any matter, including,
without limitation, the Advertising Program and other services
provided hereunder or their accuracy. Company expressly disclaims
the warranties of Non-Infringement, Merchantability, and Fitness
for any Particular Purpose.
3. ADVERTISER SUBMISSIONS.
Submission Deadline. Company must receive all Advertiser
Submissions at least five (5) business days prior to the
scheduled date of publication for each relevant Advertisement
(b) Changes and
Cancellations. All changes to and/or cancellations of Advertiser
Submissions must be made in writing and received by Company prior
to the Submission Deadline.
(c) Rejections. Company may, in
its complete discretion, refuse at any time, prior to or during
publication, for any reason to accept any Advertiser Submission
and/or to publish any Advertisement. [In the event Company
exercises such discretion, Company shall refund the applicable
pro rata portion of fees paid for advertising services not yet
4. ADVERTISER WARRANTY AND INDEMNIFICATION.
Advertiser Warranty. Advertiser hereby represents and warrants to
Company: (i) No Infringement. Advertiser's Advertisements do not
now, and will not, violate any criminal laws or any rights of any
third parties, including, but not limited to, infringement or
misappropriation of any copyright, patent, trademark, trade
secret, music, image, or other proprietary or property right,
false advertising, unfair competition, defamation, invasion of
privacy or rights of celebrity, violation of any
antidiscrimination law or regulation, or any other right of any
person or entity.
(ii) No Objectionable Content. Advertiser's
Advertisements do not now, and will not, include any material
that is: unlawful, harmful, fraudulent, threatening, abusive,
harassing, defamatory, vulgar, obscene, profane, hateful,
racially, ethnically or otherwise objectionable, including,
without limitation, any material that encourages conduct that
would constitute a criminal offense, give rise to civil
liability, or otherwise violate any applicable local, state,
national or international law.
(b) Indemnification. Advertiser
shall indemnify and hold Company, its officers agents, directors,
employees and distributors harmless from and against all actions,
claims, damages, costs and expenses (including attorney's fees)
arising out of or with respect to: (i) any breach of the
foregoing warranties; or (ii) any other third party claim in
connection with Advertiser's Advertisements.
Advertiser shall pay Company according to the prices
and terms listed in the Rate Card or as specified in the
Advertising Program or as agreed upon.
Defined. "Confidential Information" will mean: (i)
Advertisements, prior to publication, (ii) any Company Web Site
statistics, such as number of visitors/unique viewers, page
views, etc., which shall be considered Company's Confidential
Information, and (iii) any information designated in writing by
the disclosing party as "confidential" or
(b) Obligations. During the term of
this Agreement and for a period of three (3) years thereafter,
neither party will use or disclose any Confidential Information
of the other party except as specifically contemplated herein.
The foregoing restrictions will not apply to information that (i)
has been independently developed by the receiving party, (ii) has
become publicly known through no wrongful act of the receiving
party, (iii) has been rightfully received from a third party
authorized to make such disclosure, (iv) has been approved for
release by the disclosing party in writing, or (v) is required to
be disclosed by a competent legal tribunal.
7. LIMITATION ON
(a) Limitation. In no event will Company be liable to
Advertiser for any lost profits, lost data, costs of procurement
of substitute goods or services, or any form of special,
incidental, indirect, consequential or punitive damages of any
kind (whether or not foreseeable), whether based on breach of
contract, tort (including negligence), product liability or
otherwise, even if Company is informed in advance of the
possibility of such damages. Company's total liability under this
Agreement is limited to the payments received by Company from
Advertiser hereunder for the current term of this
only, without regard to any previous agreements or versions of
this Agreement between the Company and the Advertiser.
Failure of Essential Purpose. The parties have agreed that the
limitations and exclusions of liability specified in this
Agreement will survive and apply even if any limited remedy
specified in this Agreement is found to have failed of its
(c) Basis of the Bargain. Advertiser
acknowledges that Company has set its rates and entered into this
Agreement in reliance upon the limitations of liability and the
disclaimers of warranties and damages set forth herein, and that
the same form an essential basis of the bargain between the
8. TERM AND TERMINATION.
(a) Term. The term of
this Agreement commences on the Effective Date and, unless
earlier terminated in accordance with this Section 8 or Section
3, will continue in effect for the full term of the agreement.
This Agreement may not be renewed. If Advertiser is interested in
continuing Advertising with the Company, a new Agreement will be
signed. Prices in the Rate Card or Advertising Program will be
subject to updates and changes and must be agreed to be both
parties in the new Agreement.
(b) Termination. In the event of
a breach by Advertiser of any of its obligations hereunder,
Company may terminate this Agreement immediately upon written
notice (see Section 9(d)) to Advertiser. In the event of a breach
by Company of any of its obligations hereunder, Advertiser may
terminate this Agreement upon thirty (30) days written notice to
the other party.
(c) Effect of Termination. (i) Payment
Obligations. If this Agreement is terminated by Company for
breach by Advertiser, Advertiser shall remain liable for the
value of the payments which are due or would otherwise become due
and payable under the terms of this Agreement as fully performed.
If this Agreement is terminated by Advertiser for breach by
Company, Advertiser shall remain liable solely for the value of
the payments which are due for advertising services already
provided hereunder. (ii) Survival. The following provisions will
survive the expiration or termination of this Agreement for any
reason: Section 1 (Definitions), Section 2 (No Warranty), Section
3(c), Section 4 (Indemnification), Section 6 (Confidentiality),
Section 7 (Limitation on Damages), Section 8(c) (Effect of
Termination), and Section 9 (General). (iii) Return of Materials.
Upon expiration or termination of this Agreement for any reason,
Advertiser will promptly and at the direction of Company either
destroy, or return to Company, and will not take or use, all
items of any nature that belong to Company or its Advertisers or
other customers and all records (in any form, format, or medium)
containing or relating to Confidential Information.
(a) Assignment. Advertiser may not assign this
Agreement in whole or in part, by operation of law or otherwise,
without Company's written consent, and any attempted assignment
of this Agreement without such consent will be null and void.
Governing Law. The validity, construction and performance of this
Agreement, and the legal relations between the parties to this
Agreement, will be governed by and construed in accordance with
the laws of the State of California, excluding that body of law
applicable to conflicts of law. The Superior Court of El Dorado
County and/or the United States District Court for the Northern
District of California shall have exclusive jurisdiction and
venue over all controversies in connection herewith, and each
party hereby consents to such exclusive and personal
(c) Force Majeure. Except for the obligation to
pay money, neither party will be liable to the other party for
any failure or delay in performance caused by reasons beyond such
party's reasonable control, and such failure or delay will not
constitute a breach of this Agreement.
(d) Notices. Any
notices under this Agreement will be sent by confirmed email,
confirmed facsimile, nationally-recognized express delivery
service, or certified or registered mail, return receipt
requested, to the address specified on the cover sheet or such
other address as the party specifies in writing. Notice by
confirmed facsimile or express delivery service will be deemed
received and effective upon delivery. Notice by certified or
registered mail will be deemed received and effective five (5)
days after dispatch.(e) Waiver. The waiver of any breach or
default of this Agreement will not constitute a waiver of any
subsequent breach or default, and will not act to amend or negate
the rights of the waiving party.(f) Severability. If one or more
of the provisions contained in this Agreement is determined to be
invalid, illegal or unenforceable in any respect under any
applicable statute or rule of law, then such provision will be
considered inoperable to the extent of such invalidity,
illegality or unenforceability, and the remainder of this
Agreement will continue in full force and effect. The parties
hereto agree to replace any such invalid, illegal or
unenforceable provision with a new provision that has the most
nearly similar permissible economic and legal
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