This MediaBrains Directory Advertising Agreement (this "Agreement") is made and entered into by MediaBrains Inc., a Florida corporation with offices located at 9015 Strada Stell Court, Suite 203, Naples, FL 34109 ("MediaBrains") and the business entity identified by you when registering and accepting this Agreement (the "Advertiser"). This Agreement shall apply to all directory listing submissions and all advertising insertion order confirmations submitted by Advertiser during the Term to MediaBrains for display and publication in one or any of MediaBrain's directory websites (the "Site" or "Sites"), and/or distribution of an advertisement on Advertiser’s behalf, (collectively the "Advertisement"). Advertiser is required to read and accept the following terms of this Agreement.
BY CLICKING THE "ADD MY COMPANY" BUTTON OR OTHERWISE AFFIRMATIVELY ACKNOWLEDING THESE TERMS, ACCESSING, RUNNING, OR USING THE SITES PROVIDED BY MEDIABRAINS, ADVERTISER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THE PERSON ACKNOWLEDGING THIS AGREEMENT REPRESENTS THAT HE OR SHE IS OVER THE AGE OF 18 AND HAS THE AUTHORITY TO BIND ADVERTISER.
Paid Business Listings include ad setup, fulfillment and optimization, ad serving and advertisement costs. On the Insertion Order form emailed to Advertiser by MediaBrains, Advertiser will approve and confirm the specific details of the Paid Business Listing(s) purchased, including category selection(s), advertising term and pricing. For each Paid Business Listing purchased, MediaBrains will provide all necessary creative services to create and display Advertiser's Paid Business Listing. Paid Business Listings will display in the selected categories and will be added to the Site(s) within 24 hours. Paid Business Listings display the Advertiser's logo (120 x 60 gif or jpg, static only), 3 lines of text each containing a maximum of 25, 35 and 35 characters, respectively), a display URL (maximum of 35 characters) and a link URL (maximum of 1,024 characters). All Paid Business Listings must conform to the specifications set forth by the Insertion Order and MediaBrain's advertising standards. MediaBrains reserves the right to reject any Paid Business Listing request submitted by Advertiser. If Advertiser's selected category is deleted during the term of this Agreement, MediaBrains may place the Paid Business Listing in a comparable category. MediaBrains reserves the right to change the overall format of the Paid Business Listing at any time without notice to Advertiser.
Advertisers can add their company to a MediaBrains directory (where applicable) by creating a free business listing. MediaBrains reserves the right to deny unqualified companies. New Basic Business Listings may be reviewed within 12 weeks of submission to MediaBrains. Basic Business Listings must conform to the specifications set forth by MediaBrain's advertising standards. MediaBrains reserves the right to decide whether, where, and how a Basic Business Listing appears on the Site(s). MediaBrains reserves the right to change the overall format of the Basic Business Listing at any time without notice to Advertiser.
Banner Ads are another form of paid Advertisement displayed on the Site(s). Banner Ads are sold on a first come first serve basis, subject to availability within the selected Site. Banner Ads accepted for the Site(s) will be reviewed by MediaBrains and are subject to approval by MediaBrains. MediaBrains reserves the right to reject any Banner Ad request submitted by Advertiser. Advertiser must provide creative artwork to MediaBrains within five (5) business days of Insertion Order Confirmation date in order to guarantee placement of Banner Ad on the Site(s). MediaBrains reserves the right to create the banner ad artwork and place on the Site(s) if Advertiser fails to provide artwork to MediaBrains within five (5) business days of Order Confirmation date. MediaBrains may reject advertising material if it is not submitted in accordance with MediaBrain's advertising standards. MediaBrains offers several Banner Ad sizes, based on available inventory within a Site. Banner Ads may be submitted in GIF, JPEG, or Flash formats. Ad images must be less than 50 kilobytes to minimize total page download weight for our users. Animated GIF images are accepted, but high-contrast, rapidly flashing images designed to be overly distracting are prohibited. MediaBrains reserves the right to refuse to display any banner image deemed too distracting. All click-through URLs must enable the browser's 'back' feature to allow users to return to the Site.
In the event Advertiser uses a third party ad server to serve Advertisements: (a) MediaBrains shall have no liability and Advertiser shall hold the third party ad server (and not MediaBrains) liable for the failure to publish the Advertisement or deliver the number of impressions or click-throughs or any other loss of any kind suffered by Advertiser where those failures or losses are due to or arise out of or in connection with any act or omission of the third party ad server; and (b) the traffic or impressions reports provided to Advertiser from the third party ad server shall be the definitive and official measurements.
MediaBrains reserves the right to reject any Advertisement that is not consistent with MediaBrain's advertising standards. In addition, MediaBrains shall have the right, at any time, to remove any Advertisement and/or terminate this Agreement if MediaBrains is directed to do so by any law enforcement agency, court or government agency or if MediaBrains determines, in its sole discretion, that the Advertisement, or any portion thereof (i) violate MediaBrain's advertising standards; (ii) violate any law, rule or regulation; (iii) are the subject of a third party claim of infringement, misappropriation, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity or (iv) are otherwise objectionable to MediaBrains. In such event, Advertiser's sole remedy shall be that MediaBrains (i) will display a different Advertisement as mutually agreed upon by the parties or (ii) if MediaBrains and Advertiser cannot agree on the display of such other Advertisement, will refund to Advertiser a pro rata portion of the fee which Advertiser has paid to MediaBrains for display of the Advertisement.
Subject to the Terms and Conditions of this Agreement, Advertiser hereby grants to MediaBrains a worldwide, limited, non-exclusive, non-transferable, royalty-free license to (i) reproduce, distribute, display, market, perform, transmit, promote, store on its servers, and otherwise use Advertiser's Advertisement, and any portion thereof, including, without limitation, Advertiser's trademarks, trade names, service marks and logos set forth therein, or as otherwise specified in writing by Advertiser, solely to display and provide Advertiser's Advertisement in accordance with this Agreement; and (ii) incorporate in the Site(s).
The term for each Advertisement shall commence on the date Advertiser confirms the Insertion Order and shall continue for the term stated within the Insertion Order ("the Initial Term"). Following the Initial Term, Advertiser's Advertisement shall renew automatically for successive periods equal to the period in the Initial Term, unless Advertiser or MediaBrains provides written notice of its intent to cancel such renewal prior to three (3) days of the renewal date. Unless either party provides notice of its intent not to renew, Advertiser's Advertisement will remain active, and Advertiser will be charged for the renewed Advertisement using the same payment method used by Advertiser for payment in the preceding term. There shall be no refunds if Advertiser elects to discontinue display of the Advertisement prior to expiration of the Initial Term or any subsequent Term of the Advertisement. MediaBrains may terminate this Agreement at any time in the event of material breach of this Agreement by Advertiser.
Advertiser agrees to pay MediaBrains for Advertiser's Advertisement at the rate specified in the Insertion Order confirmation and invoice. Advertiser may pay with a credit card or must pay upon receipt of MediaBrains' invoice. All payments must be made in U.S. dollars. MediaBrains may terminate this Agreement if Advertiser fails to pay any amount due under the applicable Insertion Order confirmation and such non-payment remains uncured for thirty (30) days following notice to Advertiser of non-payment. MediaBrains reserves the right to change its rates at any time. Such rate change would not affect Insertion Orders already confirmed by Advertiser and received by MediaBrains prior to the change.
Advertiser is solely responsible for any legal liability arising out of or relating to the Advertiser's Advertisement. Advertiser represents and warrants that (i) the Advertisement complies with MediaBrain's advertising standards; (ii) Advertiser holds the necessary rights to permit the use and display of the Advertisement by MediaBrains for the purposes of this Agreement; (iii) display of Advertiser's Advertisement does not infringe any copyright or other proprietary right of any third party; (iv) the use, reproduction, distribution, or transmission and display of the Advertisement will not violate any civil or criminal laws, rules or regulations or any rights of any third parties. Advertiser agrees to defend, hold harmless and indemnify MediaBrains and its agents, officers, and employees from all damages, injuries, losses, claims, suits, liabilities, costs, and expenses, of any nature whatsoever, including but not limited to reasonable attorney's fees, for which MediaBrains may become liable by reason of this Agreement, MediaBrains publication and display of Advertiser's Advertisement, or otherwise.
MediaBrains shall not be liable for any errors in Advertising content or for failure to display Advertiser's Advertisement. Should an error appear within Advertiser's Advertisement, MediaBrains' sole liability will be limited to the cost of the Advertisement (prorated for the period of time the Advertisement was displayed). MediaBrains will not be liable for any delays in delivery and/or non-delivery in the event of an act of God, action by any government entity, transportation, strike, network difficulties, electronic malfunction, etc. or any feasibility, reliability, or effectiveness related to the Site(s). MediaBrains does not represent or warrant that the Site(s) will meet the objectives or needs of Advertiser or any third party. In no event will MediaBrains be liable for any failure, disruption, downtime, interruption, miscalculation, delay, inaccuracy, or any nonperformance related to the Site(s).
UNDER NO CIRCUMSTANCES WILL MEDIABRAINS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOST INCOME OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF MEDIABRAINS HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. MEDIABRAINS MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING MEDIABRAINS SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MEDIABRAINS SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (1) THE NUMBER OF PERSONS WHO WILL ACCESS ANY ADVERTISEMENT OR SITE(S) AND (2) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM ANY ADVERTISEMENT OR THE SITE(S).
Advertiser agrees to indemnify, defend and hold MediaBrains and our partners, agents, officers, directors, employees, subsidiaries, successors, assigns, third party suppliers of information and documents, advertisers, product and service providers, and affiliates (collectively, "Affiliated Parties") harmless from and against any and all liabilities, losses, claims, demands, disputes of any kind, including without limitation, reasonable attorneys’ fees and costs of litigation resulting from Advertiser’s violation of this Agreement or relating to the content of any Advertisement provided by Advertiser to MediaBrains.
These Terms and Conditions replace, supersede, and merge all prior discussions, agreements, or understandings between the parties and shall be changed only by written agreement of the parties. MediaBrain's remedies shall be cumulative and remedies herein specified do not exclude any remedies allowed by law or in equity. Waiver of any breach shall not constitute waiver of any other breach of the same or any other breach of the same of any other provision. Acceptance of any items or payment therefore shall not waive any breach. This Agreement may not be assigned or transferred by the Advertiser. This Agreement is governed by the laws of the State of Florida. Advertiser irrevocably consents to the exclusive jurisdiction of the courts of the State of Florida and the federal courts situated in the State of Florida in connection with any action arising under this Agreement.