Terms & Conditions
THE CONDITIONS OF USE OF THIS SERVICE AND WEBSITE INCLUDE THE FOLLOWING THREE AGREEMENTS OF USE:
2. SUBSCRIBER AND USER GENERAL TERM OF USE
At Access Arts Inc. / ArtDeadline.Com, every subscriber is valued. We want your experience to be the best. To ensure customer integrity, we will only use personal information collected for identification and contact purposes, and/or for demographic information to be used by our staff. This information will be used to help us ensure that our services are best designed to meet your needs. Regarding e-mail, ArtDeadline.com does not send unsolicited or “spam” e-mail. ArtDeadline.com uses provided subscriber e-mail addresses solely to alert members of special events, artist calls, offers, and/or subscriber account information and updates. ArtDeadline.com does not sell nor rent its e-mail lists.
It is against ArtDeadline.Com’s policy to provide any customer information to any third party without the customer’s prior permission. ArtDeadline.Com is not responsible for the use of any customer information that customers provide to any of these third party individuals and companies and ArtDeadline.Com disclaims any responsibility for their actions.
Welcome to ArtDeadline.Com, a service provided by Access Arts, Inc.. From hence forth, it’s owner, subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, associates and affiliates, will be referred solely as ‘Access Arts’, ‘Access Arts’ Access Arts, Inc., ArtDeadline.Com and/or as “Service”. Your use of this site and it’s information signifies acceptance of the following terms (“TOS”). These terms may be updated by us from time to time without notice. You can review the most current version of this TOS at any time on this page.
2. SUBSCRIBER AND USER TERM OF USE
Please note: Copyright and modification for publication restriction applies to all individuals, organizations or companies even if not exclusively subscribers/members. Deriving information from our exclusive content/resources via other parties, or in any other manner, for re-publication is strictly prohibited and will be regarded as infringement.
Access and use of this websites information, news database, newsletter and/or magazine is licensed solely to the individual subscriber, and is subject to non – refundable termination if searched from more than two IP addresses or domains. In addition, due to the nature of the internet and this site, subscriber requested refunds, for whatever the stated reason, must be made within the first 5 days following activation of the account. Refunds thereof will be for the full amount minus the trial edition of the subscription (currently $14.00). However, upon our own discretion, we may consider requests made after such time, and may refund portions of unused subscription relative to unused time, if deemed reasonable by us.
Unless otherwise expressly permitted, no copying, redistribution of content or personal password, retransmission, modification of content for purposes of publication or commercial exploitation is permitted without the express written permission of Access Arts / ArtDeadline.Com and owner.
The information, text, and html found within this site and it’s accompanying database, is for the personal use of the subscriber and may not be reproduced, modified, linked to by any other url, and/or distributed without prior written consent of Access Arts, ArtDeadline.Com and owner.
You agree on behalf of yourself and the organization you represent: no copying, redistribution, retransmission, modification for purposes of re-publication or commercial exploitation of ArtDeadline.Com and Access Arts news, listings and materials is permitted without the express written permission of Access Arts and ArtDeadline.Com. Furthermore, contact of any organizations thru our service for purpose of promoting yourself or service is forbidden and also constitutes infringement. This also covers retrieval of information from us for purposes of re-publication via other party sources, such as other employees, associates and friends.
SECOND & THIRD PARTY CONTENT
Access Arts / ArtDeadline.Com, owners and associates cannot and does not guarantee the accuracy of the information supplied to them by others, or any information on pages linked to ArtDeadline.Com pages or within it’s print publications. No responsibility for this information can be, or is, assumed. Inclusion on this site does not indicate or imply an endorsement by Access Arts / ArtDeadline.Com of any organization, site or information.
Furthermore, although every effort is taken to assure the accuracy of the provided news, announcements and related information, Access Arts, Inc. does not endorse and is not responsible or liable for any Content, and waives full responsibility that the information is correct, or current, as posted or provided by ArtDeadline.Com and/or other originating source.
As always, subscriber must exercise personal caution and responsibility when applying to contests, call for submissions and related events, especially when money is requested for participation.
Also, the Service may provide, or unrelated parties may provide, links to other World Wide Web sites or resources. Because Access Arts has no control over such sites and resources, you acknowledge and agree that Access Arts, Inc. is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, proposals, or other materials on or available from such sites or resources. You further acknowledge and agree that Access Arts, Inc. shall not be responsible or held liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
Access Arts, Inc. is a distributor (and not a publisher) of content supplied by unrelated parties. Accordingly, Access Arts has no more editorial control over such content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, Subscribers or any other user of Access Arts ArtDeadline.Com, are those of the respective author(s) and not of Access Arts. Neither Access Arts nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose.
In many instances, the content available through Access Arts / ArtDeadline.Com represents the opinions and judgments of the respective information provider, or other user not under contract with Access Arts. Access Arts / ArtDeadline.Com neither endorses nor is responsible for the accuracy or reliability of any information, opinion, advice or statement made within ArtDeadline.Com. Under no circumstances will Access Arts / ArtDeadline.Com be liable for any loss or damage caused by a Subscriber’s reliance on information obtained through Access Arts / ArtDeadline.Com. It is the responsibility of Subscriber to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through Access Arts / ArtDeadline.Com.. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice or other content.
You agree to indemnify and hold Access Arts, Inc., ArtDeadline.Com, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post or transmit, and/or access through the Service, and your overall use of the Service and it’s provided information, your connection to the Service, or your violation of any rights of another.
You agree that you will not submit any Content to ArtDeadline.Com / Access Arts that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party. By submitting Content you automatically grant — or warrant that the owner of such Content has expressly granted — Access Arts / ArtDeadline.Com the royalty-free, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, distribute, perform and display such Content (in whole or part) worldwide. (In more simple terms, that you are simply allowing us to publish your submitted news in the format provided by Access Arts / ArtDeadline.Com).
MODIFICATIONS TO SERVICE
Access Arts, Inc. reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Access Arts shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
You agree that Access Arts, Inc. in its sole discretion, may terminate your password, account, (or any part thereof) or use of the Service, and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Access Arts believes that you have violated or acted inconsistently with the letter or spirit of the “Subscription”. Access Arts may also, in its sole discretion and at any time, discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that Access Arts may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Access Arts shall not be liable to you or any third-party for any termination of your access to the Services.
You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
Except as expressly authorized by Access Arts or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. ACCESS ARTS, INC. / ARTDEADLINE.COM, OWNERS AND BUSINESS ASSOCIATES CANNOT AND DOES NOT GUARANTEE THE ACCURACY OF THE INFORMATION SUPPLIED TO THEM BY OTHERS, OR ANY INFORMATION ON PAGES LINKED TO ARTDEADLINE.COM PAGES OR WITHIN IT’S PRINT PUBLICATIONS. NO RESPONSIBILITY FOR THIS INFORMATION CAN BE, OR IS, ASSUMED. INCLUSION ON THIS SITE DOES NOT INDICATE OR IMPLY AN ENDORSEMENT BY ACCESS ARTS / ARTDEADLINE.COM OF ANY ORGANIZATION, SITE OR INFORMATION.
b. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ACCESS ARTS, INC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
c. ACCESS ARTS, INC MAKES NO WARRANTY THAT
(i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND, (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
d. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
e. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ACCESS ARTS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ACCESS ARTS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ACCESS ARTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
Art Project Funding Initiative Service (APFI)
a. Artists Agreement
In the event that donations are submitted directly to Access Arts via any means, such as online donation forms, by mail, etc, we will only distribute such funds to individual Artists once a specific Project Goal, as agreed with artist prior to publication, reaches its targeted funding. In addition, the first $25 of every campaign managed by us, will be collected as adminstractve costs and not considered to be a donation for artist distribution. Any donations made directly to the artist by a donor that does not involve administration by the use is available with cost.
b. Donors of Cash, Material, Products or In-kind Service Agreement
You understand and agree that your donation is being made to Access Arts and not to an individual Artist or Project. You further understand and agree that Access Arts has exclusive legal control over all donations. While Access Arts will give careful consideration to all Donor recommendations, it is under no legal obligation to use your donation to fund any particular Project or Artist recommended by you. Furthermore, Access Arts will only distribute donated funds to individual Artists once a specific Project reaches its targeted funding. It is possible that the Project recommended by you will not reach its targeted funding and that Access Arts will not distribute donated funds to your recommended Artist or Project. ALL DONATIONS ARE FINAL AND NON-REFUNDABLE. Donations to Access Arts represent irrevocable gifts subject to the legal and fiduciary control of the organization’s Board of Directors.
You understand and agree that your donation will not be refunded to you, in whole or in part, and you may not cancel or withdraw your donation for any reason. Without limiting the generality of the foregoing, Access Arts will not refund your donation to you in the event that your recommended Artist fails to complete a fully funded Project, your recommended Artist fails to deliver any anticipated perks. Tax deduction for your donation is not available.
In the event that you make a donation, you will be required to provide credit card or other payment information at the time of the donation. You represent and agree that all payment information you provide to Access Arts will be true, accurate, current and complete. In the event that your payment cannot be processed due to inaccurate payment information, insufficient funds, or any other reason, you agree to immediately provide Access Arts with alternative payment information to fulfill your donation.
In the event that you make a donation and Access Arts and your donation is used to fund a Project, your donation may entitle you to receive certain perks to be provided by the Artist as more fully described in the Project and as identified at the time of your donation. You understand and agree that Access Arts is not responsible for providing any perks, that any such perks will be provided directly to you by the Artist upon completion of the Project, that your donation is not contingent upon receiving any perks, and that your donation will not be refunded to you in the event that the Artist fails to provide you with any perks even if such perks are described in the Project at the time of your donation.
If you receive any perks as a result of your donation, the amount of your contribution is not deductible for federal and state income tax purposes.
Unless you expressly notify Access Arts to the contrary, Access Arts and the applicable Artists shall have the right, but not the obligation, to list your name as a Project contributor in any programs, publications or public announcements with respect to any Project for which you recommended funding. You hereby release Access Arts from any and all claims, damages, liabilities and causes of action arising out of or related to your donation, including but not limited to the failure of any Projects to be approved for funding, the failure of any Artists to complete any Projects, the failure of any Artists to provide you with any promised perks, your inability to obtain a tax deduction for your donation, the listing or failure to list your name as a Project contributor and/or the use of your donation by Access Arts to fund a Project or Artist that you did not recommend.
The TOS constitute the entire agreement between you and Access Arts, Access Arts, Inc / ArtDeadline.Com and all other services owned and managed by Access Arts Inc, and govern your use of the Service, superceding any prior agreements between you and Access Arts, Access Arts, Inc / ArtDeadline.Com. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The TOS and the relationship between you and Access Arts, Access Arts, Inc / ArtDeadline.Com, shall be governed by the laws of the State of Hawaii without regard to its conflict of law provisions. You and Access Arts, Access Arts, Inc / ArtDeadline.Com agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Honolulu, Hawaii. The failure of Access Arts, Inc, to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Please report any violations of the TOS to our Customer Care group via online contact form. Please note that we do not provide phone sales. No solicitors please.
These Advertising Terms and Conditions are hereby made part of the General Rate Card/Advertising and/or Public Service Announcement Publication Order (the “Advertising Agreement”) by and between ArtDeadline.Com, a service of Access Arts Inc. (“Publisher”) and the advertiser named therein and party thereto (“Advertising Party”) and its advertising agency, if any (“Advertising Agency,” and together with Advertising Party, “Advertiser”). Each such party acknowledges that the following additional terms and conditions are incorporated in and made a part of the Advertising Agreement. This Addendum, including the Advertising Agreement made upon submission of Ad (along with any supplements, amendments, exhibits, schedules or addendums thereto, collectively, the “Agreement”), shall be binding upon the parties.
1. ADVERTISING ACCEPTANCE; PUBLISHER’S RIGHT TO REJECT OR ALTER
(a) Submission of an advertisement to Publisher does not constitute a commitment by Publisher to publish the advertisement. Publisher accepts advertising only by publishing such advertisement. Upon such acceptance, Advertiser acknowledges that (i) the terms and conditions set forth in this Agreement shall apply to all advertising orders unless such terms and conditions are modified, superseded or otherwise altered by a written instrument signed by an authorized representative of Publisher, (ii) the terms and conditions set forth in this Agreement shall prevail over any inconsistent terms and conditions set forth in any order or contract form of any Advertiser and (iii) insertion orders containing disclaimers are not acceptable and are not legally binding or valid. Publisher has the right, in its sole and absolute discretion, to reject any advertisement or any portion thereof. Publisher’s publication of an advertisement shall not affect its right to reject such advertisement thereafter.
(b) Publisher reserves the right to alter any advertising material in order for the material to conform to its current mechanical specifications, publication style and format. The rates stated in the Advertising Agreement shall remain the same upon a reduction in the size of any advertisement. Publisher rates are based on advertising spaces rather than actual published size, which may have shrinkage related to the publication medium and size.
2. LAWFUL ADVERTISING; INDEMNIFICATION
Advertising Party and Advertising Agency, if applicable, jointly and severally represent and warrant that (a) any and all material submitted to Publisher (i) is accurate and original, (ii) does not violate any law or contract or infringe the copyrights, trademarks, trade names, patents or other intellectual property rights of any person, (iii) does not constitute unfair competition, and (iv) contains no matter which is libelous, an invasion of privacy or publicity, an unlawful appropriation of any name or likeness or is otherwise injurious to the rights of any person; and (b) each of Advertising Party and Advertising Agency, if applicable, has obtained all necessary consents for publication prior to submission to Publisher. Advertising Party and Advertising Agency, if applicable, jointly and severally agree to defend, indemnify and hold Publisher and its affiliates and their respective directors, officers, principals, managers, members, partners, shareholders, employees, and controlling persons and their affiliates (Publisher and each such person being an “Indemnified Party”), harmless from and against all damages to and liabilities resulting from or relating to demands, claims, actions or causes of action, assessments or other losses, costs and expenses relating thereto, interest and penalties thereon and attorneys’ fees, legal fees and any other expenses in respect thereof or in enforcing their rights hereunder, by reason of or resulting from or attributable to its breach of this Agreement, the publication of any advertisement by Publisher (whether or not Publisher assisted in the preparation of the advertisement), the distribution of any sample product submitted by Advertising Party and/or Advertising Agency or the acts or omissions of Advertiser, its contractors, agents, employees and guests at any Publisher event (if the insertion order includes Advertiser’s sponsorship of a Publisher event).
3. MATERIALS; COPYRIGHTS, TRADEMARKS AND INTELLECTUAL PROPERTY.
(a) Publisher has no obligation to return any material submitted to Publisher by or on behalf of Advertiser to Advertiser or any other party, and Publisher shall have no liability for its loss or destruction.
(b) Publisher shall have the right to use any advertising published in Publisher’s publication for the purpose of promoting any of the products and services of Publisher. Advertiser grants Publisher a non-exclusive, perpetual, irrevocable and worldwide license to publish any and all advertising content created by Advertiser or its agents or Publisher, including but not limited to photographs, artwork, text and graphics, in any media, presently known or unknown, including but not limited to Publisher’s electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media. To the extent feasible and with the use of known technological resources, Publisher agrees that it will make reasonable efforts to prevent the reproduction of coupons capable of redemption by a consumer in any of Publisher’s electronic publications.
4. POSITION REQUESTS
Publisher shall not be deemed in breach of this Agreement in the event that it does not honor a specific position agreement due to conflicting editorial needs, in Publisher’s sole discretion. In the event Advertiser has paid a premium for a particular position, reimbursement for failure to publish in a particular position shall be limited to the refund of such premium to Advertiser.
5. LIABILITY FOR ERRORS, OMISSIONS OR FAILURE TO PUBLISH OR DISTRIBUTE
(a) Publisher’s liability for errors or omissions in advertisements or advertising inserts shall be limited to the cost of advertising space in an amount equal to the erroneous advertisement. Publisher’s liability for failure to publish any advertisement or distribute any advertising insert shall be limited to a refund of any amount paid to Publisher for such advertisement or insert. Notwithstanding the foregoing, Publisher shall have no liability for, and no credit shall be issued to Advertiser for, errors that do not materially affect the value of the advertisement or advertising insert or where Advertiser is responsible for the error or omission. Credits for errors in advertisements or advertising inserts materially affected by the error are allowed for the first publication or distribution only. Publisher’s liability in connection with any sponsorship of a Publisher event shall be limited to the amounts payable to Publisher under the particular insertion order to which it relates.
(b) Notwithstanding anything to the contrary herein, in no event shall Publisher be liable to Advertiser or to any other parties for any further damages of any kind arising from any breach of this Agreement or any other advertising contract, written or oral, or act or omission of Publisher with respect to an advertisement or advertising insert or sponsorship, including but not limited to, direct, indirect, special, consequential, or punitive damages.
(c) Publisher is not responsible for errors involving orders, cancellations or corrections given orally. Written or facsimile confirmation of orders, cancellations or corrections must be received prior to Publisher’s cancellation deadline. Publisher will publish advertisements and bill Advertiser for all advertising orders that are not canceled prior to the deadline. Advertiser may be subject to a cancellation charge when such cancellation results in production delays.
(d) Publisher shall not be responsible for the loss, theft or damage to any personal property of Advertiser, its employees, agents and guests during any Publisher event that may be sponsored by Advertiser.
(a) Payments are due prior to publication of Advertisment. Credit privileges may be given for long-term advertisers per our own discretion. Advertisement will be suspended on accounts not paying by the 15th of the month in which a payment is due. Payments must accompany all orders from accounts which have not established credit with ArtDeadline.Com (Access Arts Inc.)
(b) We reserve the right to cancel any contract and/or alter terms of payment: (1.) if any bill is not paid when due; (2.) if the advertiser and/or advertising agency becomes insolvent, makes an assignment for the benefit of creditors, is adjudged a bankrupt, or a receiver of the property or business of the advertiser and/or advertising agency is appointed, or if the advertiser and/or advertising agency shall file a petition seeking relief as a debtor under the federal bankruptcy act, or if a petition is filed against the advertiser and/or advertising agency for reorganization under said act, or for adjudication of bankruptcy; (3.) for any other cause considered sufficient by us.
7. AMENDMENTS; WAIVERS; RATE CHANGES
(a) Waiver of any term of this Agreement or failure of Publisher to terminate this Agreement on account of any breach by Advertiser shall not be deemed a waiver of Publisher’s rights to subsequently enforce any term or to terminate this Agreement by reason of any subsequent breach by Advertiser. No waiver by either party on any one occasion shall extend to or effect or be construed as a waiver of any right or remedy on any future occasion or with respect to any prior occasion. No course of dealing of any person nor any delay or omission in exercising any right or remedy shall constitute an amendment of this Agreement or a waiver of any right or remedy of any party hereto.
(b) Except as set forth in subsection (c) of this Section 7, no amendment of any term, provision or condition of this Agreement shall be effective, unless in a writing executed by each of the parties hereto that specifically refers to this Agreement.
(c) Publisher shall have the right to revise the advertising rates set forth in this Agreement at any time upon notice to Advertiser of such rates. Advertiser may terminate this Agreement on the date the new rates become effective by giving written notice within 30 days of such termination. In the event of such termination, Advertiser shall be liable for Advertising published prior to such termination at the Current Agreement Rate. “Current Agreement Rate” is defined as the billing rate in effect at the time of publication.
8. TERMINATION OF AGREEMENT; EFFECT OF TERMINATION
(a) Publisher shall have the right to terminate this Agreement at any time, with or without notice to Advertiser, for Advertiser’s failure to remit payment for invoices by the due date of such bills, or complaints made herein of readership regarding services rendered by Advertiser.
(b) Subject to the terms of subsection (e) of this Section 8, Advertiser shall have the right to terminate this Agreement at any time by written notice to Publisher.
(c) the original commitment made to Publisher under the Advertising Agreement or
(ii) an amount for all advertising published during the term including advertising previously billed (“Amount Due”), adjusted for space, inserts and color actually used. The unpaid balance of such adjusted Amount Due shall be based upon the “Actual Rate Earned” for advertising during the term. The “Actual Rate Earned” is defined as the rate which would have been payable by Advertiser if the amount of advertising actually purchased during the term had been contracted for in the first instance, and such Actual Rate Earned shall be ascertained by reference to the applicable Publisher rate card in effect on the date that the advertising was published.
Advertiser agrees that no representations of any kind have been made to Advertiser by Publisher or by any of its agents and that no understanding has been made or agreement entered into other than as set forth herein.
10. FORCE MAJEURE
Publisher shall not be liable for failure to publish or distribute any advertisement because of strikes, labor disputes, government action, war, fire, breakdown of equipment, terrorist act, or any other cause beyond its reasonable control.
11. OTHER SERVICES
Except as stated otherwise, payments by Advertiser to Publisher for services or goods other than advertising space, inserts and color shall not be applied toward any revenue totals set forth in the Agreement.
Advertiser shall be liable for all costs incurred by Publisher, including but not limited to attorneys’ fees and expenses, in collecting past due accounts and in defending any and all claims asserted in the action.
Any and all taxes levied against advertising shall be added to the advertising charges, including but not limited to any sales taxes.
14. PREPARATION OF ADVERTISING
Advertiser represents and warrants that it is familiar with all laws and regulations applicable to its advertisement(s), and that advertising material submitted to Publisher shall be in compliance with such laws and regulations.
On request, Publisher may assist Advertiser in preparing its advertisement(s) for publication. This assistance may include design, composition, text and artwork. Publisher does not assume any obligations to perform a legal review of Advertiser’s advertisement(s). Advertiser remains solely responsible for the contents of the advertisement(s) and for compliance with any laws regulating such advertising.
This Agreement and the rights and obligations hereunder are personal to Advertiser and may not be assigned by any act of Advertiser or by operation of law, change of control of Advertiser or otherwise without the prior written consent of Publisher, to be granted or not granted in Publisher’s sole and absolute discretion. Advertiser may not assign to, nor utilize for the benefit of another person or entity, any of the lineage required to be purchased by Advertiser without Publisher’s prior written consent, to be granted or not granted in Publisher’s sole and absolute discretion.
If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision, and such invalid or unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth in this Agreement. To the full extent, however, that the provisions of any applicable law may be waived, they are hereby waived to the end that this Agreement be deemed a valid and binding agreement enforceable in accordance with its terms.
17. JOINT AND SEVERAL LIABILITY OF ADVERTISING PARTY AND ADVERTISING AGENCY
Advertising Party and Advertising Agency are each hereby obligated, jointly and severally, to pay any and all amounts owed to Publisher, as and when the same shall become due and payable, in accordance with the terms hereof. All written agreements between Advertising Party and Advertising Agency, shall include provisions whereby each such party agrees that Publisher has a right to recover any and all amounts owed hereunder from either such party directly. Publisher shall be a third-party beneficiary of all such agreements. Publisher is hereby irrevocably appointed as each of Advertising Agency’s and Advertising Party’s attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any amounts owing from Advertising Party to Advertising Agency, or Advertising Agency to Advertising Party, as the case may be, pursuant to such agreements and Publisher shall retain such amounts to offset amounts due hereunder. Each of Advertising Agency and Advertising Party shall immediately upon receipt pay directly to Publisher any and all amounts that it receives from Advertising Party or Advertising Agency, as the case may, for payment of amounts owed pursuant to this Agreement.
18. REPRESENTATIONS AND WARRANTIES
Each of Advertising Party and Advertising Agency, hereby represents and warrants to Publisher:
(a) It is duly incorporated or formed, as the case may be, validly existing and in good standing under the laws of the state of its incorporation or formation, as the case may be, and has all requisite power to own, lease and operate its property and to carry on its business as now being conducted.
(b) All action on the part of such party necessary for the authorization, execution and delivery of, and the performance of all of its obligations under, this Agreement has been duly taken. This Agreement constitutes a valid and binding obligation of such party, enforceable against it in accordance with its terms.
(c) The execution and delivery by such party of this Agreement do not, and the consummation of the transactions contemplated hereby will not, (i) violate or conflict with the organizational documents of such party or (ii) constitute a material breach or default or give rise to any lien or other encumbrance, third-party right of termination, cancellation, material modification or acceleration under any material agreement, understanding or undertaking to which it is a party or by which it is bound, or violate or conflict with any applicable law.
(d) All written agreements between Advertising Party and Advertising Agency include provisions whereby each such party agrees that Publisher has a right to recover any and all amounts owed hereunder from either such party directly.
(e) Advertising Agency is authorized and has the power to (i) enter into this Agreement on behalf of or in the name of Advertising Party and (ii) bind Advertising Party to this Agreement without the prior written consent of Advertising Party.
(f) Advertising Party is authorized and has the power to (i) enter into this Agreement on behalf of or in the name of Advertising Agency and (ii) bind Advertising Agency to this Agreement without the prior written consent of Advertising Agency.
Thank you, We look forward to serving you.