Advertising Terms and Conditions
These terms and conditions (the "Terms") are entered into between eMilitary and the Advertiser/Sponsor and/or Agency ("Customer") referenced on the corresponding business membership application and/or insertion order. If Customer is an Agency, Agency represents and warrants that (1) Advertiser has authorized Agency to enter into this Agreement on Advertiser's behalf and to represent the Advertiser within the scope of this Agreement, and (2) Advertiser agrees to be bound by the terms of this Agreement, including but not limited to paying eMilitary for advertisements delivered pursuant to this Agreement and any corresponding Business Membership Applications (BMA)s and insertion orders. These Terms shall be deemed incorporated by reference into any BMA and insertion order submitted by Customer. The Terms, BMA s and insertion orders collectively form the "Agreement." In the event that there is a conflict between the language in the Terms and Conditions, Business Membership Application and the Insertion Order, the insertion order will take precedence. Each party to agreement represents and warrants to the other party that: (i) such party has the full corporate right, power and authority to enter into agreement and to perform the acts required of it hereunder; and (ii) when executed and delivered by such party, agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
1. Term; Renewal. The term of these Terms commences on the Start Date set forth in the IO ("Start Date") or corresponding Business membership application and continues in force and effect until terminated pursuant to section 2. Except as expressly set forth in the corresponding BMAs and insertion orders, any renewal of the corresponding BMAs and insertion orders , acceptance of any additional corresponding BMAs and insertion orders, and pricing for such renewal or additional corresponding BMAs and insertion orders shall be at eMilitary's sole discretion.
2. Termination; Effect of Termination. eMilitary shall have the right to terminate any BMAs and insertion orders (and this Agreement), in whole or in part, with or without cause, at any time except as provided in an corresponding BMAs and insertion orders. Once an IO is submitted, Customer cannot terminate it for any reason unless expressly provided in the IO or these terms. Upon termination for any reason, (i) Customer shall remain liable for any amount due under an BMA and IO for advertisements delivered by eMilitary and such obligation to pay shall survive termination of this Agreement, (ii) at the request of either party, the other party shall return all Confidential Information and (iii) Sections 2-9 shall survive termination. .
Either party may terminate agreement at any time with written notice to the other party ONLY in the event of a material breach of agreement by the other party which remains uncured after thirty (30) days written notice thereof; provided that the cure period in connection with Advertiser's failure to make any payment to EMILITARY required in the Insertion Order shall be ten (10) days rather than thirty days.
In addition, EMILITARY shall have the right to terminate agreement upon a material breach by Advertiser of any other written agreement with EMILITARY to which Advertiser is a party, which material breach remains uncured after any notice and cure period set forth in such agreement. Should EMILITARY terminate agreement due to Advertiser's failure to comply with any requirement of agreement or other written agreement with EMILITARY, Advertiser will remain liable for the full amount indicated on the Insertion Order or Business Member Application.
EMILITARY may terminate agreement immediately following written notice to Advertiser if Advertiser (1) ceases to do business in the normal course, (2) becomes or is declared insolvent or bankrupt, (3) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days or (4) makes an assignment for the benefit of creditors. Additionally, in the event of a change of control of Advertiser, EMILITARY may terminate agreement upon thirty (30) days prior written notice to Advertiser. EMILITARY reserves the right to terminate agreement at any time for any reason upon thirty (30) days advance written notice to Advertiser (or upon such shorter notice as may be designated by EMILITARY in the event that EMILITARY believes in good faith that further display of the Listings will expose EMILITARY to liability or other adverse consequences).
RENEWALS: Customer understands that membership with The Military Family Network will automatically renew at the same rate at the end date specified on the client’s order form unless the client notifies eMilitary at least ten (10) business days prior to the membership expiration date.
The only time the membership will not auto-matically renew is in the event of a rate increase for the level of membership relating to the client. In the event of a rate increase, a separate Business Membership Renewal form will be sent to the client within 30 days of the client’s membership expiration date. The client may choose not to renew under the new terms. The client must notify EMILITARY in writing either electronically (to sales@emilitary.org) or by mail at 100 Bridge Street, Suite D, 2nd Floor, Hampton Virginia 23669 within 30 days of their membership expiration date of the client’s intent not to renew.
3. Confidentiality. Customer shall make no public announcement regarding the existence or content of the corresponding BMAs and insertion orders without EMilitary's prior written approval. Furthermore, during the term of this Agreement, and for a period of two years following any BMA and IO End Date, neither party will use or disclose any Confidential Information of the other party except as provided herein. "Confidential Information" includes (1) advertisements, prior to publication, (2) BMAs and IOs, (3) any eMilitary statistics and information designated by either party in writing, or identified orally at time of disclosure as "confidential" or "proprietary." The foregoing restriction does not apply to information that has become publicly known through no breach by a party, or has been: (1) independently developed without access to the other party's Confidential Information; (2) rightfully received from a third party; (3) approved in writing for release by the disclosing party; (4) required to be disclosed by law or by a governmental authority. EMILITARY and Advertiser each agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, during the term of agreement, and for a period of three years following expiration or termination of agreement, to prevent the duplication or disclosure of Confidential Information of the other party other than to its employees or agents who must have access to such Confidential Information to perform such party's obligations hereunder, provided that employees or agents are subject to strict confidentiality obligations. Notwithstanding the foregoing, either party may disclose Confidential Information without the consent of the other party, to the extent such disclosure is required by law, rule, regulation or government or court order. In such event, the disclosing party shall provide at least five (5) business days prior written notice of such proposed disclosure to the other party and shall submit a request to the applicable governing body that agreement (or portions thereof) receive confidential treatment to the fullest extent permitted under applicable laws, rules and regulations. "Confidential Information" shall mean any information relating to or disclosed in the course of agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party, including, but not limited to, the material terms of agreement and information about EMILITARY Users. "Confidential Information" shall not include information (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third-party. Upon the expiration or termination of agreement, each party will, upon the written request of the other party, return or destroy (at the option of the party receiving the request) all Confidential Information specified by the other party. This section shall survive the completion, expiration, termination or cancellation of agreement for the three year period specified herein.
4. No Warranty. eMILITARY MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
5. Limitations of Liability; Force Majeure. In no event shall eMilitary be liable for any act or omission, or any event directly or indirectly resulting from any act or omission, of Customer, or any third parties (if any). EXCEPT FOR THE PARTIES' INDEMNIFICATION AND CONFIDENTIAILITY OBLIGATIONS HEREUNDER, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (II) EACH PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID OR PAYABLE TO eMILITARY FROM CUSTOMER FOR THE BMA or IO GIVING RISE TO THE CLAIM. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
6. Customer's Responsibilities. Customer is responsible for the selection of the content and display of advertisements, URL links, corresponding BMAs and insertion orders and including any trademark issues associated therewith. Customer shall ensure that(a) Customer holds all rights needed to permit the use, reproduction, display, transmission and distribution of the advertisement and all contents therein ("Use") by eMilitary; and (b) eMilitary's Use, Customer's provided text and graphics, any data regarding users, and any material to which users can link, or any products or services made available to users through the advertisement will not (i) violate any criminal laws or third party rights; (ii) encourage conduct that would constitute a criminal offense or violate any law; or (iii) give rise to civil liability.
7. Advertisement Placement and Modification. Customer agrees (unless otherwise specified in an BMA or IO) that advertisements will be displayed on the customer selected page. Customer may, in good faith, modify content of advertisment so long as the total value of an BMA or IO is not materially reduced. If eMilitary receives a complaint from a third party alleging that advertisements corresponding to an BMA or IO infringe the third party's trademark or other proprietary rights, eMilitary shall have the right to suspend the advertisements at issue.
8. Indemnification. Each party agrees to indemnify the other party and its respective agents, subsidiaries, directors, officers, employees and applicable third parties (e.g., syndication partners, licensors, licensees, consultants, and contractors) ("Indemnified Person(s)") from and against any valid third party claim, liability, loss and expense (including damage awards, settlement amounts, and reasonable legal fees and expenses incurred by the indemnifying party in such defense) ("Liabilities"), arising out of the breach by the indemnifying party of its obligations under this Agreement and failure to comply with applicable law in the performance of its obligations hereunder during the Term. Advertiser further agrees to indemnify and not hold responsible eMilitary and its respective agents, subsidiaries, directors, officers, employees and applicable third parties (contractors etc) for any communication, referral, posting, message etc that is posted by registered users of the eMiltiary Network. EMilitary shall take reasonable steps to ensure that inflammatory remarks are removed. Advertiser is responsible for notifying eMilitary of offensive material posted on the site and eMilitary will then make effort to investigate and remove such material. Advertiser agrees not to hold eMilitary or any of its respective agents liable for damages real or imagined from third party communications on the network., user submitted referrals about advertiser or any other communication. The indemnification obligations regarding the Indemnified Person(s) and Liabilities shall exist only if the indemnified party (the "Indemnitee") (1) promptly notifies the indemnifying party (the "Indemnitor") of any claim, (2) provides the Indemnitor with reasonable information and cooperation in defending the claim, and (3) gives the Indemnitor full control and sole authority over the defense and settlement of such claim. The Indemnitee may join in defense with counsel of its choice at its own expense. The Indemnitor shall not reimburse the Indemnitee for any expenses incurred without prior written approval.
9. Dispute Resolution. Any dispute arising out of or relating to this Agreement, BMA or IO shall be resolved in accordance with the procedures specified in this Article, which shall be the sole and exclusive procedures for the resolution of any such disputes. a) In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement or disputes arising from or concerning trademarks, service marks or trade names and/or confidentiality, the parties will first attempt to resolve the dispute(s) through good faith negotiation. In the event that the dispute(s) cannot be resolved through good faith negotiation, the parties will refer the dispute(s) to a mutually acceptable mediator for hearing. b) In the event that disputes between the parties arising fromor concerning in any manner the subject matter of this Agreement, disputes arising from or concerning trademarks, service marks or trade names and/or confidentiality, cannot be resolved through good faith negotiation and mediation, the parties will refer the dispute(s) to the American Arbitration Association for resolution through voluntary arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes. The parties, after exhausting all reasonable efforts to settle their dispute, have the right to seek resolution in a manner provided by law in accordance with Article 10.
10. Priority; Governing Law. This Agreement: (1) shall be governed by the laws of Virginia, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Hampton, Virginia. This constitutes the entire agreement between the parties with respect to the subject matter hereof. Each party hereto is duly authorized to enter into this Agreement and perform its obligations hereunder. Any modifications to this Agreement must be made in a writing executed by both parties. The parties will negotiate any dispute hereunder in good faith within thirty (30) days of receiving written notice; this obligation shall not eliminate any remedies available to the parties. Any notices shall be sent to the addresses set forth in the BMA by facsimile or overnight courier and shall be deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default. If any provision herein is unenforceable under any applicable law, then such provision will be modified to reflect the intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Any reference to the term "partner" herein does not denote a legal partnership relationship, but one of independent contractors. Customer may not resell, assign, or transfer any of its rights hereunder. Any such attempt shall automatically terminate the Agreement, without liability to eMilitary.
11. Solicitation. (a) Advertiser shall not send unsolicited, commercial email or other online communication (i.e., "spam") through or into the eMilitary Network, absent a prior business relationship with the recipient, and shall comply with any other standard eMilitary policies and limitations relating to distribution of bulk email solicitations or communications through or into eMilitary's products or services (including, without limitation, the requirement that Advertiser provide a prominent and easy means for the recipient to "opt-out" of receiving any future commercial email communications from Advertiser). (b) Advertiser shall ensure that its collection, use and disclosure of information obtained from eMilitary Users under agreement ("User Information") complies with (i) all applicable laws and regulations and (ii) the then-current privacy policy(ies) of the applicable Designated Service(s) (or, in the case of information collected on Advertiser's site, Advertiser's standard privacy policies so long as such policies are prominently published on the site and provide adequate notice, disclosure and choice to users regarding Advertiser's collection, use and disclosure of user information). (c) Each request for information from an eMilitary User ("Information Request") shall clearly and conspicuously specify to the eMilitary User the purpose for which the information collected by Advertiser will be used (the "Specified Purpose"). Advertiser shall limit use of the User Information collected through an Information Request to the Specified Purpose. In the case of EMILITARY Users who purchase products or services from Advertiser, Advertiser will be entitled to incorporate such EMILITARY Users into Advertiser's aggregate lists of customers; provided that Advertiser shall in no way: (i) disclose User Information in a manner that identifies EMILITARY Users as end-users of an EMILITARY product or service, provided that inclusion of EMILITARY User email addresses as part of an aggregate list shall not be deemed a breach of this provision, or in any other manner that could reasonably be expected to facilitate use of such information by or on behalf of a product or service that is reasonably competitive with the EMILITARY Network (or any portion thereof) or with one or more of the principal products or services offered through the EMILITARY Network (a "Competitive Product"); or (ii) otherwise use such User Information in connection with marketing, promotion, or distribution of a Competitive Product. (d) Advertiser shall not use any User Information collected (whether or not collected through an Information Request, the Listings, the Advertiser Content, or any other aspect of the EMILITARY Network) to promote, or solicit customers on behalf of, a Competitive Product. This section shall survive the completion, expiration, termination or cancellation of agreement.
12. Press Releases. Advertiser shall not issue any press releases or public statements concerning the existence or terms of agreement without the prior written approval of EMILITARY. The failure of Advertiser to obtain the prior written approval of EMILITARY shall be deemed a material breach of agreement. Because it would be difficult to precisely ascertain the extent of the injury caused to EMILITARY, in the event of such a material breach, EMILITARY may terminate agreement immediately following written notice to Advertiser without regard to any cure periods set forth herein.
13. Usage Data. EMILITARY shall provide Advertiser with usage information related to the Listings in substance and form determined by EMILITARY and/or as outlined in corresponding BMA's consistent with its then-standard reporting practices. Advertiser may not distribute or disclose usage information to any third-party without EMILITARY's prior written consent.
14. Miscellaneous. The parties to this Agreement are independent contractors. Neither party is an agent, representative 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. The failure of either party to insist upon or enforce strict performance by the other party of any provision of agreement or to exercise any right under agreement shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance. Except where otherwise specified herein, the rights and remedies granted to a party under agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity. Neither party will be liable for, or be considered in breach of or default under agreement on account of any delay or failure to perform as required by agreement as a result of any causes or conditions which are beyond such party's reasonable control and which such party is unable to overcome by the exercise of reasonable diligence.
Advertiser shall not use, display or modify EMILITARY's trademarks in any manner absent EMILITARY's express prior written approval. Agreement sets forth the entire agreement between Advertiser and EMILITARY, and supersedes any and all prior agreements of EMILITARY or Advertiser with respect to the tranBMActions set forth herein. No change, amendment or modification of any provision of agreement shall be valid unless set forth in a written instrument signed by the party subject to enforcement of such amendment. Advertiser shall not assign agreement or any right, interest or benefit under agreement without the prior written consent of EMILITARY. Assumption of the Agreement by any successor to Advertiser (including, without limitation, by way of merger or consolidation) shall be subject to EMILITARY's prior written approval. Subject to the foregoing, agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. In the event that any provision of agreement is held invalid by a court with jurisdiction over the parties to agreement, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law and (ii) the remaining terms, provisions, covenants and restrictions of agreement shall remain in full force and effect. Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the BMAme document. Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the Commonwealth of Virginia, except for its conflicts of laws principles. Advertiser hereby irrevocably consents to the exclusive jurisdiction of the courts of the Commonwealth of Virginia and the federal courts situated in the Commonwealth of Virginia in connection with any action arising under agreement. Any notice or other communication under agreement will be given in writing and will be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered by confirmed facsimile or in person to the party to whom the BMAme is directed, (ii) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (iii) five business days after the mailing date, whether or not actually received, if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. Each party shall take such action (including, but not limited to, the execution, acknowledgment and delivery of documents) as may reasonably be requested by any other party for the implementation or continuing performance of agreement.
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