Last modified December 3, 2012
1. Subject to terms hereof, Advertiser confirms that it has appointed Agency, if one is specified, to be its authorized representative with respect to all matters relating to this agreement with the understanding that Agency may be paid a commission. Advertiser shall have the right to revoke its agency at any time during the period of this agreement effective upon receipt by Service of notice in writing; in such event, Service may, at its option, terminate this agreement. If Advertiser shall designate another agent Service may, at its option, recognize such agent upon receipt of an agreement by said agent to be bound by the terms of this agreement and to become liable for the payment of all bills due and to become due under this agreement.
2. Advertiser and Agency represent that there is nothing in any advertisement or other material provided by Advertiser or Agency, or in any material to which the advertisement or other material links or refers, that violates any personal or proprietary right of any third party, constitutes false advertising, is harmful, or violates any law or governmental regulation. Advertiser and Agency agree to indemnify and hold harmless Service, its employees, and representatives against all liability, loss, damage and expense of any nature, including attorneys fees, arising out of the publishing, distribution, or transmission of any advertisement submitted by or on behalf of the Advertiser regardless of whether AlleyWatch.com participated in the creation of such advertisement, or the linkage of any advertisement to any other material, or the loss, theft, use, or misuse of any credit or debit or other payment, financial, or personal information.
3. Service reserves the right, at its absolute discretion and at any time, to reject or delete any advertising copy, whether or not the same has already been acknowledged and/or previously published, including but not limited to for reasons relating to the contents of the advertisement or any technology associated with the advertisement. The rejection of copy by Service shall require Advertiser and/or Agency to supply new copy acceptable to Service. Advertisements that simulate editorial content must be clearly labeled “ADVERTISEMENT” and Service may, in its sole discretion, so label such copy.
4. In the event a volume of advertising less than that specified herein is used and paid for or the Advertiser or Agency otherwise breaches the terms of this agreement, or if at any time Service in its reasonable judgment determines that Advertiser is not likely to have published the total amount of advertising specified herein during the term of the agreement, any rate discount will be retroactively nullified and Service reserves the right to charge Advertiser and Agency the difference between the contract rates charged and the rates applicable for the volume of space actually used, in accordance with the applicable Open rate schedules (“short-rate”). In such event, Advertiser and Agency must reimburse Service for the short-rate within ten days of Services invoice therefore and Advertiser will thereafter pay for advertising at the open rate or at the earned rate(s) (as applicable).
5. Service, at its option, may terminate this agreement for the breach of any of the terms hereof, it being specifically understood without limitation that failure on the part of either Advertiser or Agency to pay each bill on or before its due date shall constitute a breach. Should Service terminate this agreement, all charges incurred together with short-rate charges shall be immediately due and payable.
6. This agreement may not be assigned by Advertiser or Agency without the prior written consent of Service, and any assignment without such prior written consent shall be null and void. The Advertiser or Agency may not use any space for the advertisement either directly or indirectly of any business organization, enterprise, product, or service other than that for which the advertising space is provided by Service, nor may Advertiser or Agency authorize any others to use any advertising.
7. Service will provide a quantity of visits, impressions, circulation, or other usage of the Service or the advertisement only if expressly so stated on the front page of this agreement. If not, Service makes no guarantee or representation as to such activity, nor as to the use of any particular tracking or information-gathering devices.
8. Orders containing terms, rates or conditions in addition to or conflicting with those contained herein may be accepted but such terms, rates, or conditions are not binding on Service unless Service has specifically agreed to them in writing.
9. In the event of a suspension of Service due to computer or network malfunction, congestion, repair, strike, accidents, fire, flood or any other cause or contingencies beyond the control of Service, it is understood and agreed that such suspension shall not invalidate this contract, but a) will give Service the option to cancel this agreement, or if Service does not do so, b) upon resumption of Service this contract shall be continued and in any event no liability for damages shall be incurred by Service by reason of such suspension.
10. Advertiser and Agency agree to be jointly and severally liable for the payment of all bills and charges incurred. Advertiser authorizes Service, at its election, to tender any bill to Agency, and such tender shall constitute due notice to Advertiser of the bill and such manner of billing shall in no way impair of limit the joint and several liability of Advertiser and Agency. Payment by Advertiser to Agency shall not discharge Advertisers liability to Service. The rights of Service shall in no way be affected by any dispute or claim as between Advertiser and Agency.
11. Advertiser and Agency agree to reimburse Service for its costs and attorneys fees in collecting any unpaid charge under this agreement.
12. If during the period of this agreement Service revises its advertising rates, Advertiser and Agency agree to be bound by such rates provided Service gives at least (10) days notice of such increase. However, in such event Advertiser and Agency may elect not to place any further advertisements after the effective date of the increase, and if no space is used after the effective date of increase, no short-rate will be charged on space used prior to such increase.
13. Subject to section 9 herein, Services liability for failure to publish an advertisement shall not exceed a credit for Services charge for such advertisement. Services sole liability (and Advertisers sole remedy) for errors/omissions by Service in published advertisements shall be to provide Advertiser a credit for the actual space of the error/omission if the error/omission is brought to Services attention no later than 5 working days after the advertisement first appears; however, if a copy of the advertisement was provided or review by Advertiser, Service shall have no liability.
14. Failure by Service to enforce and provision of this agreement shall not be considered a waiver of such provision
15. Advertiser and Agency recognize that the copyright in any advertisements created by Service is owned by Service. As to all other advertisements, Advertiser and Agency agree that Service has the non-exclusive right, for the full term of copyright, by itself or through third parties, to republish and re-use any advertisements submitted hereunder in any form in which the advertisements may be published or used (in any media now in existence or hereafter developed) in whole or in any part, whether or not combined with material of others.
16. The foregoing terms shall govern the relationship between Service and Advertiser and Agency. Service has not made any representations to Advertiser or Agency that are not contained herein. Unless expressly agreed to in writing signed by Service, no other terms and conditions in insertion orders, copy instruction, letters, or otherwise will be binding on Service.
17. Any bill tendered by Service shall be conclusive as to the correctness of the item or items therein set forth and shall constitute an account stated unless written objection is made thereto within ten (10) days from the rendering thereof. In addition, unless otherwise agreed on the cover page of this agreement, all impressions and/or other measurements of ads hereunder shall be solely based on Services calculations.
18. All issues relating to advertising will be governed by the laws of the State of New York applicable to contracts to be wholly performed therein. Any action brought by Advertiser and/or Agency against Service relating to advertising must be brought in the state or federal courts in New York; and the parties hereby consent to the exclusive jurisdiction of such courts in connection with actions relating to advertising.
19. To the extent any advertisement is distributed/delivered via electronic mail, Advertiser agrees to comply with all federal, state and local rules, laws, and regulations applicable thereto, including without limitation the federal CAN-SPAM Act and all state “Do Not E-mail” registries. Advertiser shall fulfill all obligations of a “Sender” as defined in the federal CAN-SPAM Act, and comply with Services reasonable policies intended to comply therewith. Advertiser will defend, indemnify and hold harmless Service for any liability, penalties, and/or expenses (including without limitation reasonable attorneys fees) in connection with a breach or alleged breach of this Section.
20. Applicable Rate Guidelines Apply.
Prohibited Items and Services
It is the responsibility of both the seller and the buyer to ensure that the items or services listed for sale and bought by users are appropriate for sale under all applicable laws and regulations. You may not sell the following items or services under any circumstances:
1. Any item or service that is harmful to minors, obscene, or otherwise objectionable.
2. Illegal or restricted weapons and related accessories, including the following:
- Firearms and firearm accessories, including ammunition, scopes, and silencers
- Switchblade knives.
- Any concealed weapon.
- Any explosive device.
- Martial arts weapons.
3. Cigarettes, illegal drugs, drug paraphernalia (including items to grow, manufacture, or distribute the same), prescription drugs, and medical devices, including any medical device that requires fitting by a certified practitioner or licensed seller.
4. Any item that violates any U.S. export law or regulation, including any items subject to the terms of the U.S. embargoes against Afghanistan, Cuba, Iran, Iraq, Libya, North Korea, Serbia (former Yugoslavia), Sudan, and any other embargoed country.
5. Any item that infringes the rights of a third party, including items that violate copyrights, trademarks, publicity, or privacy rights of third parties. Examples include, but are not limited to:
- Unauthorized copies of software, music, video games, movies, photos, or other media.
- Bootleg recordings of concerts, movies, or other performances.
- Sale of back-up copies of software.
6. Any item that is counterfeit or stolen, including items that are:
- “Replicas,” “knock-offs,” in the same “style” as, or “fake” versions of a name brand product.
- Counterfeit, or for the purpose of producing counterfeit, currency, stamps, or government identification.
- Inauthentic sports collectibles, celebrity autographs, or otherwise inauthentic versions of memorabilia or other items with inauthentic signatures.
- Any item for gaining unauthorized entry to a place or vehicle including lock-picking devices, vehicle master keys, and other devices.
7. Any item that promotes, glorifies, or is directly associated with groups or individuals known principally for hateful or violent positions or acts, such as Nazis or the Ku Klux Klan. Official government-issue stamps and coins are not prohibited under this policy. Expressive media, such as books and films, may be subject to more permissive standards as determined by AlleyWatch.com and its affiliated properties in its discretion.
8. Any animal items that are subject to regulations or laws for the protection of live animals, including endangered species and domesticated animals, as well as any products made from or including any parts of an animal protected by law or regulation.
9. Any item that has been the subject of a product recall by the U.S. Consumer Product Safety Commission, other government agency, or product manufacturer.
10. Any item used for hacking, intercepting, jamming, descrambling, or otherwise obtaining unauthorized access to wire, electronic, or other types of communications.
11. Bodies, body parts, bodily fluids. For example: cadavers, organs, “clean” urine for drug tests, sperm, eggs, blood, breast milk.
12. Fireworks, explosives, or any hazardous material or restricted chemical.
13. Materials that could combine to create an explosive devise.
14. Government-issued identification documents, whether authentic or counterfeit (e.g., fake IDs for age verification, fake government credentials, passports, green cards, birth certificates), police badges or insignia, and any other law enforcement items (e.g., FBI identification cards, badges, uniforms, flashing lights/sirens, etc.) generally restricted for sale under federal and state law.
15. Stocks and securities.
16. Gambling items (lottery tickets, sweepstakes, pyramid schemes, grab bags, raffles, slot machines, etc.).
17. Individual contracts for services, and any item that is non-transferable.
18. Event tickets sold for prices that are in violation of the laws or regulations of the event venue.
19. Non-packaged food items and other food or beverage items sold in a manner inconsistent with federal, state, or local regulations.
20. Any used goods not appropriate for resale for safety, health, or other reasons, including any clothing items that have not been appropriately cleaned (e.g., used underwear).
21. Any items that are “adult oriented” in nature or marketed in an objectionable manner, as determined in AlleyWatch.com and its affiliated properties’ sole discretion.
22. Any other item or service that violates any applicable federal, state, or local law or regulation or which AlleyWatch.com and its affiliate properties determine, in their sole discretion, is inappropriate for sale through the services provided by AlleyWatch.com and its affiliated properties