New Adflight Terms come Jan 4.
They now require your site get at least 300,000 impressions a month and some other things.
-----------------------------------
ADFLIGHT PUBLISHER TERMS AND CONDITIONS
This AdFlight Publisher Terms and Conditions (the "Agreement") is made by
and between AdFlight, Inc. ("AdFlight") and _________________________ the
("Publisher"). By placing AdFlight ad code on the Publisher's web site(s)
the Publisher agrees to the following:
1. Services. AdFlight shall provide, in accordance with the terms and
conditions of this Agreement, advertising representation services to the
Publisher, including, without limitation, (1) soliciting the purchase of
online advertising campaigns from advertisers and advertising agencies
(collectively, the "Advertisers"); and (2) serving, reporting and tracking
advertising campaigns that run on inventory (collectively, the
"Representation Services") on the Publisher's web site(s) (the "Website")
2. Payment. The AdFlight network utilizes the cost-per-impression (CPM) and
cost-per-click (CPC) advertising model. Publishers are paid based on the
number of monthly impressions or clicks provided to AdFlight. Payments will
be sent 45 days following the end of each month (ex: June payment will be
sent by August 15). No checks will be issued for any amounts less than $50
U.S.D. All un-issued earnings will rollover to the next pay period. The
amount of each payment is subject to the terms and conditions of the
Agreement.
3. AdFlight reserves the right not to pay the current month and previous
month (based on the severity of the violation) any accounts, members, or Web
Sites that violate any of the terms and conditions contained within this
Agreement. AdFlight will be responsible for determining in its sole and
absolute discretion what acts and omissions violate these Terms and
Conditions.
4. Web site Eligibility. Publisher will maintain its web site(s) in
accordance with the highest industry standards. Publisher acknowledges that
AdFlight has no responsibility to review the content of its web site(s).
All web sites must satisfy the following minimum requirements:
A. Sites must provide a greater proportion of original content versus links
,advertising, or user generated content (guest books, forums, message
boards, and discussion boards).
B. A site must receive a minimum of 300,000 page views per month.
C. The site cannot contain any of the following:
- Explicit/vulgar/obscene language
- Referencing of sexually explicit images or other offensive content
including model/idol content.
- Promotion of adult services, such as phone sex or international or
domestic escort services.
- Content or links to content promoting the use of alcohol, tobacco, or any
other illegal substances.
- Promotion of illegal substances or activities, such as online gambling,
how to build a bomb, counterfeit money, etc.
- Mail fraud, pyramid schemes, investment advice or money-making
opportunities not permitted under law.
D. The site content cannot infringe on any personal, intellectual property,
or copyrights, including but not limited to:
- Racial, ethnic, political, or hate mongering
- MP3, Wares, and/or ROM files
- Gratuitous displays of violence or profanity
- Material that defames, abuses, or threatens physical harm
- Content that is libelous, defamatory, contrary to public policy, or
otherwise unlawful, or any other content deemed inappropriate by AdFlight in
its sole discretion.
E. Web Site must be in English.
F. The Publisher must be based in the United States, unless otherwise
approved.
G. The website cannot have international content.
H. Incentivized or pay-for-surf type sites are not eligible.
I. Networks or hosting sites will be approved on a case by case basis.
Publisher must register each individual domain/sub-domain as a separate site
by creating a new media kit.
J. Sites that force the users to click on banners are not eligible.
K. Sites "under construction" or are inaccessible will not be approved.
5. Web Publisher Rules. The following methods of generating websurfer
interest are unacceptable to AdFlight and may be grounds for dismissal from
the network:
A. All AdFlight Network advertisements must be served from the AdFlight
server.
B. Displaying another publisher's content within the frame of a site is
unacceptable.
C. Use of unsolicited e-mail or inappropriate newsgroup postings to promote
your Web Site; autospawning of browsers; automatic redirecting of users;
clicking on your own banners; blind text links; misleading links; placing
AdFlight code on interstitials or on pop-up style presentations; or any
other method that may lead to artificially high numbers of visitors.
D. Publisher cannot run "robots" or "spiders" against its web site or use
any means to artificially increase the impressions available with respect to
any ad spaces.
E. Publisher cannot alter, copy, modify, take, sell, re-use, or divulge any
AdFlight Network HTML code. AdFlight will make any required alterations or
modifications to the AdFlight Network HTML code.
F. Placement of banners. Publishers may place a maximum of four different
AdFlight ad spot sizes per page, but only one of each size. ( i.e. (1)
468x60, (1)120x60, (1)120x90, and (1)88x31). Publisher may not display more
than four total ads per page.
G. Standard 468x60 banners must be above the fold.
H. Exclusion of banners - Publishers cannot choose to select individual
advertisers; however, a publisher can request to
exclude any banner which a publisher deems inappropriate for their
particular site. To remove specific banners, please send an email to
help@adflight.com and state which banner to remove, the URL where the banner
is placed, as well as the reason for removal.
I. Multiple Pages - Publishers may place the AdFlight code on all
appropriate pages within an approved website/domain/sub-domain. Ad codes may
not function or will be deactivated immediately if shown on pages outside of
an approved domain/sub-domain. AdFlight reserves the right not to pay for
ads displayed on pages outside an approved domain/sub-domain. Publishers who
wish to use AdFlight's code on multiple websites/domains/sub-domains must
register each individual domain/sub-domain as a separate site by creating a
new media kit.
J. Maximum Impressions - Publishers are limited to a maximum of 500,000
impressions per day. Prior approval must be obtained if publishers would
like to provide more than 500,000 daily impressions. Please send an email to
publishers@adflight.com to request approval.
K. Refresh Rates - Publisher may utilize "meta refresh banner rotations"
only for pages that have chat, video broadcast, audio broadcast, or active
gaming content. Such ads must not be refreshed more than once every three
minutes. Publishers with increased refresh rates will be deactivated
immediately.
6. Minimum Requirement. AdFlight reserves the right to terminate Web
Publisher's relationship with the AdFlight Network immediately should either
(a) the number of impressions delivered by Publisher total less than 300,000
per month, or (b) the CTR average greatly exceeds our network average
(Publisher will be contacted for an explanation,) (c) the CTR average falls
by 0.1% below our network average (i.e. If the network average is 0.4%, a
publisher can be removed if they have a CTR less than 0.3%). Adflight
reserves the right not to pay for a CTR higher than 2.0%
7. Termination. Either party may terminate this non-exclusive Agreement for
any reason upon written notice. Termination notice may be provided via
e-mail or any other written means and will be effective upon receipt. Upon
receipt of such termination notice the Publisher agrees immediately to
remove from its website all AdFlight HTML code for serving AdFlight banners.
In the event of termination, all legitimate earnings due to the Publisher
will be paid during the next billing/payment cycle.
8. Publisher's Representations. Publisher represents that it has the right
to display all content in its web site and that such material does not
infringe on any third party's copyrights, trademarks, or other intellectual
property rights, or violate any right of privacy or publicity, or constitute
any libel or defamation of such third party.
9. Indemnification. Publisher hereby agrees to indemnify, defend and hold
harmless AdFlight and its officers, directors, agents, affiliates and
employees from and against all claims, actions, liabilities, losses,
expenses, damages, and costs (including, without limitation, reasonable
attorneys' fees) that may at any time be incurred by any of them by reason
of any third party claims, suits or proceedings: (a) for libel, defamation,
violation of right of privacy or publicity, copyright infringement,
trademark infringement or other infringement of any other right, fraud,
false advertising, misrepresentation, product liability or violation of any
law, statute, ordinance, rule or regulation in connection with the
Publisher's websites (except for advertising content supplied by AdFlight);
or (b) relating to a contaminated file, virus, worm, or Trojan horse
originating from the Publisher's sites (other than through an advertisement
supplied by AdFlight).
10. Applicability. These terms and conditions, as amended from time to time,
shall apply to Web Publisher for as long as Web Publisher is a member of the
AdFlight Network and shall constitute the entire and only Agreement between
the parties regarding Web Publisher's membership in the AdFlight Network,
and shall supersede all previous communications, representations or
Agreements, whether written or oral between the parties.
11. Modifications. AdFlight reserves the right to change any conditions of
this contract at any time. Members are responsible for complying with any
changes to the AdFlight Network Terms and Conditions within 10 business days
from the date of change.
12. No License. AdFlight does not grant to Publisher any license to any
AdFlight advertising content, the name "AdFlight" or any derivative thereof,
or any other trademarks, logos, copyrights, patents, trade secrets, or other
intellectual property rights which are owned or controlled by AdFlight and
made available to Publisher in any manner.
13. Confidential Information. Neither party shall disclose any of the terms
and conditions of this Agreement to any third party without the express
written consent of the other party. Neither party shall disclose to any
third party the Confidential Information of the other party and shall not
use any such Confidential Information for any purpose other than the purpose
for which it was originally disclosed to the receiving party. "Confidential
Information" means any information of a party disclosed to the other party,
which is identified as, or should be reasonably understood to be,
confidential to the disclosing party, including, but not limited to the
results of Publisher's sale of impressions on behalf of AdFlight, know-how,
trade secrets, technical processes and formulas, software, customer lists,
unpublished financial information, business plans, projections, and
marketing data. "Confidential Information" shall not include information
that (i) is known to the receiving party at the time it receives the
purportedly Confidential Information; (ii) has become publicly known through
no wrongful act of the receiving party; (iii) has been rightfully received
by the receiving party from a third party authorized to make such
communication without restriction; (iv) has been approved for release by
written authorization of the disclosing party; (v) is independently
developed by the receiving party without resort to or use of the disclosing
party's Confidential Information; or (vi) is required by law to be
disclosed.
14. Privacy. Web Publisher shall support AdFlight's commitment to protect
the privacy of the web surfer community; such commitment is set forth in
AdFlight's Privacy Policy, which is hereby incorporated into these terms and
conditions.
15. Disclaimer of Warranties. The parties agree that: (i) AdFlight
exercises no control and has no responsibility whatsoever over the content
or quality of any advertising materials or any ad spaces, (ii) use of
AdFlight's services is at Publisher's own risk, and (iii) this is not a
contract for the sale of goods, therefore, is not subject to the Uniform
Commercial Code. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE
PROVIDED "AS IS" AND "AS AVAILABLE" AND ADFLIGHT DISCLAIMS ALL WARRANTIES OF
ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE ADVERTISING SERVICES,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE
OF DEALING OR COURSE OF PERFORMANCE. ALL ORDERS ARE CONTINGENT UPON
ADFLIGHT'S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND ARE SUBJECT TO
DELAYS CAUSED BY ACCIDENTS, WAR, ACT OF GOD, EMBARGOES, OR ANY OTHER
CIRCUMSTANCES BEYOND ADFLIGHT'S CONTROL. ADFLIGHT WILL MAKE EVERY REASONABLE
EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE
AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.
16. Limitation of Liability. AdFlight shall not be liable for any
advertisers content nor the contents of any advertisement, nor shall
AdFlight be liable for any loss, cost, damage, or expense (including
attorney's fees) incurred by Publisher or any advertiser in connection with
an advertiser's or Publisher's participation. AdFlight makes no guarantees
with respect to the services rendered under this Agreement, and neither
AdFlight nor any of its officers, directors, agents, AdFlight members or
sponsors shall have any liability as a result of AdFlight's performance of
this Agreement, including, without limitation, Internet disruption,
interrupted service, errors or delays in providing the service, levels of
use or impressions, loss of data, failure to provide requested subject
categories, failure to meet Publisher or advertiser's requirements, or other
injury, damage, or disruption to advertiser or advertiser's web site.
Without limiting the foregoing, AdFlight's entire liability under, for
breach of, arising under, or related to this Agreement or the services to be
provided hereunder (whether in tort, contract or any other theory), and
Publisher's sole remedy, is for AdFlight, if possible, to provide the
services agreed hereunder or refund any amounts prepaid by Publisher related
to the services giving rise to such liability, provided such refund shall
not exceed the aggregate charges for services rendered for the prior six
months under this Agreement that gave rise to such liability. EXCEPT AS
PROVIDED IN SECTION 9 ABOVE WITH RESPECT TO INDEMNIFICATION, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES (EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE
RELATIONSHIP PROVIDED HEREIN.
17. Independent Contractors. The parties to this Agreement are independent
contractors. Neither party is an agent or partner of the other party.
Neither party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or
to otherwise bind, the other party. This Agreement shall not be interpreted
or construed to create an association, agency, joint venture or partnership
between the parties or to impose any liability attributable to such a
relationship upon either party.
18. Audit. AdFlight shall have the sole responsibility for calculation of
statistics, including impressions and click through numbers. In the event
Publisher disagrees with any such calculation, it shall send a written
statement to AdFlight within 30 days explaining the disagreement. AdFlight
will thereupon consider Publisher's explanation and provide Publisher with
an audited review of the numbers, which shall be final and binding on the
parties.
19. Governing Law. This Agreement shall be construed and interpreted
according to the laws of the State of California without reference to the
conflicts of law provisions thereof. The parties hereby consent to the
exclusive jurisdiction of the California and federal courts sitting in San
Mateo County, California.
20. Assignment. Publisher may not assign or otherwise transfer, whether
voluntarily or by operator of law, any rights or obligations under this
Agreement without the prior written consent of AdFlight, which shall not be
unreasonably withheld.
21. Severability. If any provision of this agreement shall be held or made
invalid or unenforceable by a court decision, statute, rule or otherwise,
the remaining provisions of this agreement shall not be affected thereby and
shall continue in full force and effect.
22. Waiver. The waiver by either party of a breach or right under this
Agreement will not constitute a waiver of any other or subsequent breach or
right.
23. Notices. All written notices between the parties shall be personally
delivered, or sent by courier, or sent via certified, registered or express
mail, or transmitted by electronic mail via the Internet (with a copy sent
by courier, registered or certified airmail) to the address set forth on the
AdFlight Publishing Insertion Order (or as otherwise directed in writing).
Unless otherwise provided herein, all notices shall be deemed to have been
duly given on: (a) the date of receipt (or if delivery is refused, the date
of such refusal) if delivered personally, by electronic mail or by courier;
or (b) three (3) days after the date of posting if sent by mail.
24. Entire Agreement. These Terms and Conditions set forth the entire
Agreement between the parties and supersedes all prior proposals,
agreements, and representations between the parties, whether written or
oral, regarding the subject matter contained herein. This Agreement may be
executed in any number of counterparts, each of which shall be considered an
original and all of which taken together shall constitute one instrument.
They now require your site get at least 300,000 impressions a month and some other things.
-----------------------------------
ADFLIGHT PUBLISHER TERMS AND CONDITIONS
This AdFlight Publisher Terms and Conditions (the "Agreement") is made by
and between AdFlight, Inc. ("AdFlight") and _________________________ the
("Publisher"). By placing AdFlight ad code on the Publisher's web site(s)
the Publisher agrees to the following:
1. Services. AdFlight shall provide, in accordance with the terms and
conditions of this Agreement, advertising representation services to the
Publisher, including, without limitation, (1) soliciting the purchase of
online advertising campaigns from advertisers and advertising agencies
(collectively, the "Advertisers"); and (2) serving, reporting and tracking
advertising campaigns that run on inventory (collectively, the
"Representation Services") on the Publisher's web site(s) (the "Website")
2. Payment. The AdFlight network utilizes the cost-per-impression (CPM) and
cost-per-click (CPC) advertising model. Publishers are paid based on the
number of monthly impressions or clicks provided to AdFlight. Payments will
be sent 45 days following the end of each month (ex: June payment will be
sent by August 15). No checks will be issued for any amounts less than $50
U.S.D. All un-issued earnings will rollover to the next pay period. The
amount of each payment is subject to the terms and conditions of the
Agreement.
3. AdFlight reserves the right not to pay the current month and previous
month (based on the severity of the violation) any accounts, members, or Web
Sites that violate any of the terms and conditions contained within this
Agreement. AdFlight will be responsible for determining in its sole and
absolute discretion what acts and omissions violate these Terms and
Conditions.
4. Web site Eligibility. Publisher will maintain its web site(s) in
accordance with the highest industry standards. Publisher acknowledges that
AdFlight has no responsibility to review the content of its web site(s).
All web sites must satisfy the following minimum requirements:
A. Sites must provide a greater proportion of original content versus links
,advertising, or user generated content (guest books, forums, message
boards, and discussion boards).
B. A site must receive a minimum of 300,000 page views per month.
C. The site cannot contain any of the following:
- Explicit/vulgar/obscene language
- Referencing of sexually explicit images or other offensive content
including model/idol content.
- Promotion of adult services, such as phone sex or international or
domestic escort services.
- Content or links to content promoting the use of alcohol, tobacco, or any
other illegal substances.
- Promotion of illegal substances or activities, such as online gambling,
how to build a bomb, counterfeit money, etc.
- Mail fraud, pyramid schemes, investment advice or money-making
opportunities not permitted under law.
D. The site content cannot infringe on any personal, intellectual property,
or copyrights, including but not limited to:
- Racial, ethnic, political, or hate mongering
- MP3, Wares, and/or ROM files
- Gratuitous displays of violence or profanity
- Material that defames, abuses, or threatens physical harm
- Content that is libelous, defamatory, contrary to public policy, or
otherwise unlawful, or any other content deemed inappropriate by AdFlight in
its sole discretion.
E. Web Site must be in English.
F. The Publisher must be based in the United States, unless otherwise
approved.
G. The website cannot have international content.
H. Incentivized or pay-for-surf type sites are not eligible.
I. Networks or hosting sites will be approved on a case by case basis.
Publisher must register each individual domain/sub-domain as a separate site
by creating a new media kit.
J. Sites that force the users to click on banners are not eligible.
K. Sites "under construction" or are inaccessible will not be approved.
5. Web Publisher Rules. The following methods of generating websurfer
interest are unacceptable to AdFlight and may be grounds for dismissal from
the network:
A. All AdFlight Network advertisements must be served from the AdFlight
server.
B. Displaying another publisher's content within the frame of a site is
unacceptable.
C. Use of unsolicited e-mail or inappropriate newsgroup postings to promote
your Web Site; autospawning of browsers; automatic redirecting of users;
clicking on your own banners; blind text links; misleading links; placing
AdFlight code on interstitials or on pop-up style presentations; or any
other method that may lead to artificially high numbers of visitors.
D. Publisher cannot run "robots" or "spiders" against its web site or use
any means to artificially increase the impressions available with respect to
any ad spaces.
E. Publisher cannot alter, copy, modify, take, sell, re-use, or divulge any
AdFlight Network HTML code. AdFlight will make any required alterations or
modifications to the AdFlight Network HTML code.
F. Placement of banners. Publishers may place a maximum of four different
AdFlight ad spot sizes per page, but only one of each size. ( i.e. (1)
468x60, (1)120x60, (1)120x90, and (1)88x31). Publisher may not display more
than four total ads per page.
G. Standard 468x60 banners must be above the fold.
H. Exclusion of banners - Publishers cannot choose to select individual
advertisers; however, a publisher can request to
exclude any banner which a publisher deems inappropriate for their
particular site. To remove specific banners, please send an email to
help@adflight.com and state which banner to remove, the URL where the banner
is placed, as well as the reason for removal.
I. Multiple Pages - Publishers may place the AdFlight code on all
appropriate pages within an approved website/domain/sub-domain. Ad codes may
not function or will be deactivated immediately if shown on pages outside of
an approved domain/sub-domain. AdFlight reserves the right not to pay for
ads displayed on pages outside an approved domain/sub-domain. Publishers who
wish to use AdFlight's code on multiple websites/domains/sub-domains must
register each individual domain/sub-domain as a separate site by creating a
new media kit.
J. Maximum Impressions - Publishers are limited to a maximum of 500,000
impressions per day. Prior approval must be obtained if publishers would
like to provide more than 500,000 daily impressions. Please send an email to
publishers@adflight.com to request approval.
K. Refresh Rates - Publisher may utilize "meta refresh banner rotations"
only for pages that have chat, video broadcast, audio broadcast, or active
gaming content. Such ads must not be refreshed more than once every three
minutes. Publishers with increased refresh rates will be deactivated
immediately.
6. Minimum Requirement. AdFlight reserves the right to terminate Web
Publisher's relationship with the AdFlight Network immediately should either
(a) the number of impressions delivered by Publisher total less than 300,000
per month, or (b) the CTR average greatly exceeds our network average
(Publisher will be contacted for an explanation,) (c) the CTR average falls
by 0.1% below our network average (i.e. If the network average is 0.4%, a
publisher can be removed if they have a CTR less than 0.3%). Adflight
reserves the right not to pay for a CTR higher than 2.0%
7. Termination. Either party may terminate this non-exclusive Agreement for
any reason upon written notice. Termination notice may be provided via
e-mail or any other written means and will be effective upon receipt. Upon
receipt of such termination notice the Publisher agrees immediately to
remove from its website all AdFlight HTML code for serving AdFlight banners.
In the event of termination, all legitimate earnings due to the Publisher
will be paid during the next billing/payment cycle.
8. Publisher's Representations. Publisher represents that it has the right
to display all content in its web site and that such material does not
infringe on any third party's copyrights, trademarks, or other intellectual
property rights, or violate any right of privacy or publicity, or constitute
any libel or defamation of such third party.
9. Indemnification. Publisher hereby agrees to indemnify, defend and hold
harmless AdFlight and its officers, directors, agents, affiliates and
employees from and against all claims, actions, liabilities, losses,
expenses, damages, and costs (including, without limitation, reasonable
attorneys' fees) that may at any time be incurred by any of them by reason
of any third party claims, suits or proceedings: (a) for libel, defamation,
violation of right of privacy or publicity, copyright infringement,
trademark infringement or other infringement of any other right, fraud,
false advertising, misrepresentation, product liability or violation of any
law, statute, ordinance, rule or regulation in connection with the
Publisher's websites (except for advertising content supplied by AdFlight);
or (b) relating to a contaminated file, virus, worm, or Trojan horse
originating from the Publisher's sites (other than through an advertisement
supplied by AdFlight).
10. Applicability. These terms and conditions, as amended from time to time,
shall apply to Web Publisher for as long as Web Publisher is a member of the
AdFlight Network and shall constitute the entire and only Agreement between
the parties regarding Web Publisher's membership in the AdFlight Network,
and shall supersede all previous communications, representations or
Agreements, whether written or oral between the parties.
11. Modifications. AdFlight reserves the right to change any conditions of
this contract at any time. Members are responsible for complying with any
changes to the AdFlight Network Terms and Conditions within 10 business days
from the date of change.
12. No License. AdFlight does not grant to Publisher any license to any
AdFlight advertising content, the name "AdFlight" or any derivative thereof,
or any other trademarks, logos, copyrights, patents, trade secrets, or other
intellectual property rights which are owned or controlled by AdFlight and
made available to Publisher in any manner.
13. Confidential Information. Neither party shall disclose any of the terms
and conditions of this Agreement to any third party without the express
written consent of the other party. Neither party shall disclose to any
third party the Confidential Information of the other party and shall not
use any such Confidential Information for any purpose other than the purpose
for which it was originally disclosed to the receiving party. "Confidential
Information" means any information of a party disclosed to the other party,
which is identified as, or should be reasonably understood to be,
confidential to the disclosing party, including, but not limited to the
results of Publisher's sale of impressions on behalf of AdFlight, know-how,
trade secrets, technical processes and formulas, software, customer lists,
unpublished financial information, business plans, projections, and
marketing data. "Confidential Information" shall not include information
that (i) is known to the receiving party at the time it receives the
purportedly Confidential Information; (ii) has become publicly known through
no wrongful act of the receiving party; (iii) has been rightfully received
by the receiving party from a third party authorized to make such
communication without restriction; (iv) has been approved for release by
written authorization of the disclosing party; (v) is independently
developed by the receiving party without resort to or use of the disclosing
party's Confidential Information; or (vi) is required by law to be
disclosed.
14. Privacy. Web Publisher shall support AdFlight's commitment to protect
the privacy of the web surfer community; such commitment is set forth in
AdFlight's Privacy Policy, which is hereby incorporated into these terms and
conditions.
15. Disclaimer of Warranties. The parties agree that: (i) AdFlight
exercises no control and has no responsibility whatsoever over the content
or quality of any advertising materials or any ad spaces, (ii) use of
AdFlight's services is at Publisher's own risk, and (iii) this is not a
contract for the sale of goods, therefore, is not subject to the Uniform
Commercial Code. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE
PROVIDED "AS IS" AND "AS AVAILABLE" AND ADFLIGHT DISCLAIMS ALL WARRANTIES OF
ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE ADVERTISING SERVICES,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE
OF DEALING OR COURSE OF PERFORMANCE. ALL ORDERS ARE CONTINGENT UPON
ADFLIGHT'S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND ARE SUBJECT TO
DELAYS CAUSED BY ACCIDENTS, WAR, ACT OF GOD, EMBARGOES, OR ANY OTHER
CIRCUMSTANCES BEYOND ADFLIGHT'S CONTROL. ADFLIGHT WILL MAKE EVERY REASONABLE
EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE
AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.
16. Limitation of Liability. AdFlight shall not be liable for any
advertisers content nor the contents of any advertisement, nor shall
AdFlight be liable for any loss, cost, damage, or expense (including
attorney's fees) incurred by Publisher or any advertiser in connection with
an advertiser's or Publisher's participation. AdFlight makes no guarantees
with respect to the services rendered under this Agreement, and neither
AdFlight nor any of its officers, directors, agents, AdFlight members or
sponsors shall have any liability as a result of AdFlight's performance of
this Agreement, including, without limitation, Internet disruption,
interrupted service, errors or delays in providing the service, levels of
use or impressions, loss of data, failure to provide requested subject
categories, failure to meet Publisher or advertiser's requirements, or other
injury, damage, or disruption to advertiser or advertiser's web site.
Without limiting the foregoing, AdFlight's entire liability under, for
breach of, arising under, or related to this Agreement or the services to be
provided hereunder (whether in tort, contract or any other theory), and
Publisher's sole remedy, is for AdFlight, if possible, to provide the
services agreed hereunder or refund any amounts prepaid by Publisher related
to the services giving rise to such liability, provided such refund shall
not exceed the aggregate charges for services rendered for the prior six
months under this Agreement that gave rise to such liability. EXCEPT AS
PROVIDED IN SECTION 9 ABOVE WITH RESPECT TO INDEMNIFICATION, UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES (EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE
RELATIONSHIP PROVIDED HEREIN.
17. Independent Contractors. The parties to this Agreement are independent
contractors. Neither party is an agent or partner of the other party.
Neither party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or
to otherwise bind, the other party. This Agreement shall not be interpreted
or construed to create an association, agency, joint venture or partnership
between the parties or to impose any liability attributable to such a
relationship upon either party.
18. Audit. AdFlight shall have the sole responsibility for calculation of
statistics, including impressions and click through numbers. In the event
Publisher disagrees with any such calculation, it shall send a written
statement to AdFlight within 30 days explaining the disagreement. AdFlight
will thereupon consider Publisher's explanation and provide Publisher with
an audited review of the numbers, which shall be final and binding on the
parties.
19. Governing Law. This Agreement shall be construed and interpreted
according to the laws of the State of California without reference to the
conflicts of law provisions thereof. The parties hereby consent to the
exclusive jurisdiction of the California and federal courts sitting in San
Mateo County, California.
20. Assignment. Publisher may not assign or otherwise transfer, whether
voluntarily or by operator of law, any rights or obligations under this
Agreement without the prior written consent of AdFlight, which shall not be
unreasonably withheld.
21. Severability. If any provision of this agreement shall be held or made
invalid or unenforceable by a court decision, statute, rule or otherwise,
the remaining provisions of this agreement shall not be affected thereby and
shall continue in full force and effect.
22. Waiver. The waiver by either party of a breach or right under this
Agreement will not constitute a waiver of any other or subsequent breach or
right.
23. Notices. All written notices between the parties shall be personally
delivered, or sent by courier, or sent via certified, registered or express
mail, or transmitted by electronic mail via the Internet (with a copy sent
by courier, registered or certified airmail) to the address set forth on the
AdFlight Publishing Insertion Order (or as otherwise directed in writing).
Unless otherwise provided herein, all notices shall be deemed to have been
duly given on: (a) the date of receipt (or if delivery is refused, the date
of such refusal) if delivered personally, by electronic mail or by courier;
or (b) three (3) days after the date of posting if sent by mail.
24. Entire Agreement. These Terms and Conditions set forth the entire
Agreement between the parties and supersedes all prior proposals,
agreements, and representations between the parties, whether written or
oral, regarding the subject matter contained herein. This Agreement may be
executed in any number of counterparts, each of which shall be considered an
original and all of which taken together shall constitute one instrument.
