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1)
PARTIES: Pursuant to this Agreement, Future Technologies Co,
("DartMedia") of P.O.Box 5858 Safat, Kuwait 13058, and Customer ("Customer")
shall agree to the following terms and conditions for
the purchase of online advertising inventory ("Inventory")
from DartMedia Network ("Network") Publishers
("Publishers") and delivery of Customer's advertising
materials and linked URLs ("Creative") to consumer
web browsers via said Inventory. This includes the serving,
tracking and reporting of each purchase ("Campaign").
Campaign details are as stated in the Campaign Insertion
Order ("IO"). In the event of a difference between
the terms of the Customer Agreement and the IO, the IO
shall take precedence.
2)
REPRESENTATION: Customer represents and warrants that:
(1) it is the owner or is licensed to use the entire contents
and subject matter contained in the Creative; (2) the
Creative is free of any "worm", "virus" or other device
that could impair or injure any person or entity; (3)
the Creative does not violate any law or regulation governing
false or deceptive advertising, sweepstakes, gambling,
comparative advertising, or trade disparagement; (4) the
Creative does not contain any misrepresentation, or content
that is defamatory or violates any rights of privacy or
publicity; (5) Customer is generally familiar with the
nature of the Internet and will comply with all laws and
regulations that may apply to display of the Creative
on Sites; and (6) the Creative does not and will not infringe
any copyright, trademark, patent or other proprietary
right. Customer grants DartMedia Network and the Publisher the
right and license to use, reproduce, transmit, and distribute
the Creative.
DartMedia Network
and Publisher jointly represents and warrant that: (1)
Publisher is the owner or is licensed to use the entire
contents and subject matter contained in the Inventory;
(2) the Inventory does not violate any law or regulation;
(3) the Inventory does not contain any misrepresentation,
or content that is defamatory or violates any rights of
privacy or publicity; (4) Publisher is generally familiar
with the nature of the Internet and will comply with all
laws and regulations that may apply; and (5) the Inventory
does not and will not infringe any copyright, trademark,
patent or other proprietary right. Publisher grants DartMedia Network
and Customer the right and license to transmit the Creative
to the Inventory.
3)
TRAFFICKING: Trafficking of Campaigns on the Network
requires 0-3 business days after Customer has purchased
the Campaign and supplied the Creative. All Campaigns
placed on the Network are subject to Network capacity
limitations which include software, hardware, bandwidth,
inventory availability, payment terms, credit history,
creative performance, and market pricing limitations.
If the IO indicates Automatic Campaign Extension, Customer
hereby grants DartMedia Network the right to extend the end date
of the Campaign, in DartMedia's discretion, to complete
delivery of the contracted Campaign budget.
4)
PUBLIC RELEASE: Neither Customer nor DartMedia Network shall
release any information regarding Customer's relationship
with DartMedia, including, without limitation, in press
releases or promotional or merchandising materials, without
the prior written consent of both Customer and DartMedia.
5)
QUALITY CONTROL: DartMedia Network reserves the right to refuse
service to any new or existing Customer, in its sole discretion,
with or without cause. DartMedia Network reserves the right, in
its sole discretion and without liability, to reject,
omit or exclude any Creative for any reason at any time,
with or without notice to the Customer and regardless
of whether such Creative was previously accepted or published.
DartMedia Network does not accept Creative from Customers that
produce or provide adult content. Creative (ad content
AND linked URLs) shall not include nudity, partial nudity
or adult language. DartMedia Network does not accept Customers
that engage in, promote or facilitate illegal activities.
DartMedia Network may in its sole discretion refuse or restrict
use of any Creative that it deems appropriate or requires
special handling. This Agreement is cancelable by DartMedia Network
immediately if Customer fails to disclose, conceals or
misrepresents itself in any way.
6)
CAMPAIGN DATA: DartMedia Network is the sole owner of all
Inventory, Campaign, and aggregate web user data collected
by DartMedia. Customer is granted unrestricted rights
to all data available online in Customer's account.
7)
CAMPAIGN ACCOUNTING: Campaigns purchased on the DartMedia Network
Network are served, tracked and reported by DartMedia.
Unless otherwise stated in the IO, DartMedia Network shall be
the governing counting authority, and all prepaid and
billed amounts due shall be per DartMedia.
8)
INDEMNIFICATION: DartMedia Network and Customer hereby
agree to indemnify, defend and hold harmless each other
and each other's 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 claims,
suits or proceedings (a) for libel, defamation, violation
of right of privacy or publicity, copyright infringement,
or other infringement of any third party right, fraud,
false advertising, misrepresentation, product liability
or violation of any law, statute, ordinance, rule or regulation
throughout the world in connection with the use of Network;
(b) or arising out of any material breach by DartMedia,
or Customer of any duty, representation or warranty under
any agreement between DartMedia Network and Customer.
9)
DAMAGES: In no event shall either party be liable
for special, indirect, incidental, or consequential damages,
including, but not limited to, loss of data, loss of use,
or loss of profits arising thereunder or from the provision
of services.
10)
WARRANTY DISCLAIMER: DartMedia Network and Publishers do not
make and hereby expressly disclaim all warranties, express
or implied, with respect to any matter whatsoever, including,
without limitation, the performance of any software programs
incidental to services rendered by DartMedia, services
provided thereunder, or any output or results thereof.
DartMedia Network and Publishers specifically disclaim any implied
warranty of merchantability or fitness for a particular
purpose.
11)
LIMITATION OF LIABILITY: Neither DartMedia Network nor Publishers
will be subject to any liability whatsoever for (a) any
failure to provide reference or access to all or any part
of the Creative due to systems failures or other technological
failures of DartMedia Network or of the Internet; (b) delays in
delivery and/or non-delivery of a Campaign, including,
without limitation, difficulties with a Publisher or website,
difficulties with a third-party server, or electronic
malfunction; and (c) errors in content or omissions in
any Creative provided by Customer. The total liability
of DartMedia Network and Publishers arising out of this campaign
or the services provided thereunder, whether based in
contract, tort or otherwise, shall not exceed (1) the
amount paid to DartMedia Network for Campaigns run on Customer's
behalf or (2) $10,000, whichever is less.
12)
GENERAL: This Agreement, including all attachments
which are incorporated herein by reference, constitutes
the entire agreement between the parties with respect
to the subject matter hereof, and supersedes and replaces
all prior and contemporaneous understandings or agreements,
written or oral, regarding such subject matter. Applicable
sections shall survive expiration or early termination
of this Agreement. Nothing in this Agreement shall be
deemed to create a partnership or joint venture between
the parties and neither DartMedia Network nor Customer shall hold
itself out as the agent of the other, except for that
specified in this Agreement. Neither party shall be liable
to the other for delays or failures in performance resulting
from causes beyond the reasonable control of that party,
including, but not limited to, acts of God, labor disputes
or disturbances, material shortages or rationing, riots,
acts of war, governmental regulations, communication or
utility failures, or casualties. Failure by either party
to enforce any provision of this Agreement shall not be
deemed a waiver of future enforcement of that or any other
provision. Any waiver, amendment or other modification
of any provision of this Agreement shall be effective
only if in writing and signed by the parties. If for any
reason a court of competent jurisdiction finds any provision
of this Agreement to be unenforceable, that provision
of the Agreement shall be enforced to the maximum extent
permissible so as to effect the intent of the parties,
and the remainder of this Agreement shall continue in
full force and effect. Headings used in this Agreement
are for ease of reference only and shall not be used to
interpret any aspect of this Agreement.
13)
ASSIGNMENT: Customer may not assign this agreement,
in whole or in part, without written consent from DartMedia.
Any reasonable request to assign this agreement in the
event of a significant change in ownership of Customer,
or such similar event, will be granted Any attempt to
assign this Agreement without such consent will be null
and void.
14)
GOVERNING LAW: This Agreement will be governed by
and construed in accordance with the laws of the State
of Kuwait.
15)
ABILITY TO ENTER INTO AGREEMENT: Customer warrants
that Customer (or Authorized Representative of Customer)
is at least 18 years of age, has the appropriate authority
to enter into this agreement, and that there is no legal
reason that Customer cannot enter into a binding contract.
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