1. Advertiser Information, Materials and Products
Advertiser shall provide Oynetwork System, Inc. with true, accurate and current information for placements, listings or advertising made in online Yellow Pages, search services, directories or other Internet services hereunder (the "Listings"). Advertiser certifies that it has the legal right to use all information, names, trademarks and search terms (collectively, "Advertiser Content") it provides or includes in its Listings. Advertiser understands and agrees that the Advertiser Content may be accessed and displayed on various Internet sites and services, and Advertiser hereby grants Oynetwork System, Inc. and the operators of such sites or services (the “Listing Services”), including those set forth in this Contract, the right to market, display, reproduce (including compression and temporary storage), distribute, perform, transmit and promote the Advertiser Content together with any content or materials on any interactive site linked to the Advertiser Content or the Listings through the Listing Services.
Advertiser represents and warrants that: it has all necessary rights and permissions to offer, sell and/or license the products and services it promotes through the Listings and the Advertiser's website; and the Listings, Advertiser Content, Advertiser's website and Advertiser’s products and services (i) do not and will not violate any laws or regulations, (ii) do not and will not violate or infringe any third party's trademark, copyright, patent, privacy, publicity or other rights, (iii) are not false, misleading, defamatory or threatening and are not likely to result in fraud, damage, injury or harm to any person, and (iv) are free of viruses, worms, trojan horses or other codes or programming that will delay, disrupt, interfere with, or damage websites, software, computers or networks or expropriate any data or information.
Advertiser acknowledges that the various Listing Services on which Listings appear may require compliance with certain policies and guidelines, and Advertiser shall access or obtain copies of the then-current versions of such policies and guidelines. Advertiser shall be responsible for ensuring that the Advertiser Content, Listings and the Advertiser's website will at all times comply with all applicable policies and guidelines, including the privacy policies, terms of service, and advertising guidelines of the Listing Services on which Listings appear. Advertiser acknowledges and agrees that the Listing Services on which its Listings appear may refuse, remove or modify the Listings pursuant to such guidelines or policies.
Without limiting the foregoing, Advertiser will comply with all policies, requirements and guidelines of Listing Services that offer search features and listings and will not engage in any conduct or utilize any tactics prohibited by such Listing Services, including, without limitation, embedding clear images, listing irrelevant keywords to gain more traffic, adding adult content to its site, or tampering with meta tags. If, at any time, Advertiser violates the policies, requirements or guidelines of a Listing Service, then Oynetwork System, Inc. may, at its option, terminate this Contract without refund or any other obligation to Advertiser..
2. Oynetwork System, Inc. Services
Oynetwork System, Inc.'s obligations hereunder are limited to transmitting the Advertiser Content provided by Advertiser to the Listing Services as set forth in the contract in the form and manner specified by such entities. Advertiser acknowledges that Oynetwork System, Inc. does not produce, operate or transmit the Listing Services on which Listings may appear and that Oynetwork System, Inc. acts only as a sales representative or reseller of advertising inventory, search or listing services for the Listing Services. Advertiser agrees that Oynetwork System, Inc. shall not be responsible for the appearance, position, display, removal, refusal or modification of the Listings by any Listing Service. Oynetwork System, Inc. makes no representations or guarantees of any kind regarding the position, effectiveness, level of impressions, click-throughs, customer response or other performance of any Listings.
Oynetwork System, Inc. may terminate the Contract or suspend performance of its services in the event of (i) any termination or substantial modification of applicable products, services or features by the Listing Service, (ii) any failure to pay by Advertiser or (iii) any material breach of this Contract by Advertiser that remains uncured for 30 days or more after Oynetwork System, Inc. has provided written notice of such breach to Advertiser.
3. Search Services
Search Service Restrictions: Advertiser will comply with all policies, requirements and guidelines of the Search Services (Google, Yahoo! Search, Bing and others) and will not engage in any conduct or utilize any tactics prohibited by such Services, including, without limitation, embedding clear images, listing irrelevant keywords to gain more traffic, adding adult content to its site, or tampering with meta tags. If, at any time, Advertiser violates the policies, requirements or guidelines of a Search Service, then Oynetwork System, Inc. may, at its option, terminate this Contract without refund or any other obligation to Advertiser.
Click Definition: "Click" means an internet user clicking on a link to Advertiser's web site in the Search Service's results listing for Advertiser, as counted by Oynetwork System, Inc..
4. Payment
Advertiser shall pay Oynetwork System, Inc. the amount set forth in the contract at the beginning of each month's billing cycle, through Advertiser's credit card, direct debit or other mutually agreed payment mechanism, during the term of this Contract. Unless another payment mechanism is mutually agreed upon by the parties, Advertiser hereby authorizes Oynetwork System, Inc. to charge the Advertiser credit card account provided in this Contract for the monthly payment amount and other charges incurred by Advertiser. All amounts are payable in US Dollars, and Advertiser will be responsible for payment of any currency exchange or conversion fees assessed by a payment processor. Oynetwork System, Inc. reserves the right to charge interest on amounts remaining unpaid after the applicable due date at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by law, if less).
5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
Oynetwork System, Inc. DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATION UNDER SECTION 6 BELOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF SUCH PARTY IS AWARE OF THE RISK OF SUCH DAMAGES, THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATION UNDER SECTION 6 BELOW, LIABILITY FOR DAMAGES OF ANY KIND SHALL NOT, FOR ANY REASON, EXCEED THE AMOUNT ACTUALLY PAID BY ADVERTISER TO Oynetwork System, Inc. UNDER THIS CONTRACT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY.
6. Confidentiality
Except as necessary to fulfill its obligations in connection with this Contract, each party shall keep the existence and terms of this Contract confidential and neither party will publish any press release related hereto without the prior written consent of the other party.
7. Indemnity
Each party ("indemnifying party") hereby agrees to indemnify, defend and hold harmless the other party and the officers, directors, agents, affiliates, and employees of the other party 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 claims, suits or proceedings brought by a third party ("Third Party Liabilities") and arising out of any material breach by indemnifying party of any duty, representation or warranty under this Contract. Without limiting the foregoing,
Advertiser shall indemnify, defend and hold harmless Oynetwork System, Inc. and its officers, directors, agents, affiliates, and employees from and against all Third Party Liabilities arising out of any actual or alleged infringement or violation by the Listings or Advertiser Content of any third party's rights or the policies or guidelines of Listing Services on which the Listings may appear.
8. Amendment
Oynetwork System, Inc. reserves the right to make changes to the terms and conditions of this Contract by sending e-mail or other notification of such changes to Advertiser. If any proposed change is not acceptable to Advertiser, then Advertiser may terminate this Contract at any time before the changes take effect by providing written notice of such termination to Oynetwork System, Inc.. Notwithstanding the foregoing, notice of any price increase shall be provided as set forth in the Pricing and Billing section of the Order form.
9. Miscellaneous
This Contract sets forth the entire agreement between Advertiser and Oynetwork System, Inc. with respect to the transactions set forth herein, and supersedes any and all prior agreements of Oynetwork System, Inc. or Advertiser with respect to such transactions.
Advertiser shall not make any assignment of this Contract or any rights benefits or obligations hereunder (including, without limitation, by way of merger or consolidation) without the prior written consent of Oynetwork System, Inc.. In the event of an assignment, this Contract shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and each of their respective successors and assigns.
This Contract shall be interpreted, construed and enforced in accordance with the laws of the Commonwealth of Ontario, except for its conflicts of laws principles. ADVERTISER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF ONTARIO,CA AND THE FEDERAL COURTS SITUATED IN THE COMMONWEALTH OF ONTARIO IN CONNECTION WITH ANY ACTION ARISING UNDER OR RELATING TO THIS AGREEMENT.
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