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AOL Bookmark Standard Terms & Conditions (Netscape Bookmark/Domestic v.1)
Advertiser agrees that AOL has the right to market, display, reproduce, distribute, perform, transmit and promote the Bookmark together with any content or materials on any interactive site linked to the Bookmark (the "Advertiser Content") through the AOL Network.
The Advertiser Content shall link only to the URL specified in the Insertion Order and shall not offer or promote any products and/or services other than those expressly provided for in the Insertion Order. Additionally, Advertiser shall consistently update the Advertiser Content and shall review, delete, edit, create, update and otherwise manage such content in accordance with the terms of this Insertion Order. The Advertiser Content shall not disparage AOL or promote any product or service which is reasonably competitive with the AOL Network (or any portion thereof) or one or more of the principal products or services offered through the AOL Network ("Competitive Products"). The Advertiser Content shall comply with AOL's privacy policies, terms of service, generally applicable advertising standards and practices, and all other standard, written policies for the applicable Designated Service(s), as such may be modified by AOL from time to time. Advertiser hereby represents and warrants that (a) it possesses all authorizations, approvals, consents, licenses, permits, certificates or other rights and permissions necessary to offer, sell or license the products and services offered, sold or licensed by or through the Bookmark or the Advertiser Content, and (b) neither the Bookmark or Advertiser Content will violate any applicable law, regulation or third-party right (including, without limitation, any copyright, trademark, patent or other proprietary right). Advertiser also warrants that a reasonable basis exists for all product or service performance or comparison claims appearing through the Advertiser Content. In no event shall the Bookmark or the linked area state or imply that (i) the Bookmark was placed by AOL or (ii) that AOL endorses Advertiser's products or services. To the extent AOL notifies Advertiser of reasonable complaints or concerns (e.g., from a user of the AOL Network (an "AOL User")) regarding the Advertiser Content or any other content or materials linked thereto or associated therewith ("Objectionable Content"), Advertiser shall, to the extent such Objectionable Content is within Advertiser's control, use commercially reasonable efforts to respond in good faith to such complaints or concerns. Advertiser shall take all steps necessary to ensure that any contest, sweepstakes or similar promotion conducted or promoted through the Advertiser Content complies with all applicable federal, state and local laws and regulations.
Advertiser shall ensure that the Bookmark and the Advertiser Content are in compliance with AOL's then-current, generally applicable technical standards for the Designated Service(s). In the event that the Bookmark or the Advertiser Content (or any portion thereof) fails to comply with AOL's generally applicable technical standards for the Designated Service, AOL shall have the right to cease or decrease the placement of the Bookmarks, and if Advertiser is unable to cure such non-compliance within five business days after notice from AOL, AOL shall have the right to terminate this Insertion Order. Additionally, AOL will be entitled to discontinue the Bookmark to the extent such Bookmark or the Advertiser Content will, in AOL's good faith judgment, adversely affect the operations of the AOL Network.
Unless expressly provided for elsewhere in this Insertion Order, AOL shall have no obligation to provide any creative, design, technical or production services to Advertiser ("Services"). Delivery by AOL of any such Services shall be subject to (i) AOL's availability to perform the requested work, (ii) execution by both parties of a separate work order specifically outlining the Services to be provided and the fees to be paid by Advertiser for such Services and (iii) payment in advance by Advertiser of such fees.
Customer Service; Taxes
Advertiser shall bear full responsibility for all customer service, including without limitation, order processing, billing, fulfillment, shipment, collection, returns and chargebacks, and other customer support associated with any products or services offered, sold or licensed through the Bookmark or the Advertiser Content, and AOL will have no obligations whatsoever with respect thereto. Advertiser will collect and pay and indemnify and hold AOL harmless from, any sales, use, excise, import or export, value added or similar tax or duty arising from or related to the Bookmark and/or the Advertiser Content, including any penalties and interest, as well as any costs associated with the collection or withholding thereof, including attorneys. fees.
Netscape Now Button
Advertiser will display the then-current version of the "Netscape Now" button as provided by AOL or the equivalent successor button (the "Netscape Now Button") prominently on the home page of Advertiser's primary web site and on any other page in such web site in which a button, text or graphic for any third-party provider of internet browser software is displayed. On any page on which it is displayed, the Netscape Now Button will be displayed in equal to or greater size and prominence than any button, text or graphic for any other internet client software, software provider, "push" content delivery system, or other online service. Advertiser will use its best efforts to promptly remedy any misplacement or malfunctioning of the Netscape Now Button on its pages that is within its reasonable control. AOL hereby grants Advertiser a non-exclusive, non-transferable, non-assignable, non-sublicensable license to use, reproduce, and display the Netscape Now Button in connection with fulfilling the foregoing obligation. Advertiser's use of the Netscape Now Button will be in accordance with AOL's reasonable policies regarding advertising and trademark usage as established from time to time by AOL, including the guidelines of the Netscape Now program published on Netscape's U.S. English language web site. AOL may immediately suspend Advertiser's use of the Netscape Now Button if AOL determines that such use violates quality standards. Advertiser's compliance with the terms and conditions of this section are a material obligation of this Insertion Order.
Advertiser agrees to pay AOL for all advertising displayed in accordance with the agreed upon amounts and billing schedule shown on this Insertion Order. Advertising packages are nonrefundable or proratable except to the extent otherwise expressly contemplated hereunder. Should AOL fail to display the Bookmark in accordance with the Insertion Order due to Advertiser's failure to comply with any requirement of this Insertion Order, Advertiser will remain liable for the full amount indicated on the Insertion Order. AOL reserves the right to cancel and remove at any time any Bookmark for any reason upon thirty (30) days advance written notice to Advertiser (or upon such shorter notice as may be designated by AOL in the event that AOL believes in good faith that further display of the Bookmark will expose AOL to liability or other adverse consequences).
AOL shall provide Advertiser with usage information related to the Bookmark in substance and form determined by AOL, consistent with its then-standard reporting practices. Advertiser may not distribute or disclose usage information to any third-party without AOL's prior written consent. Advertiser will have the right to have an independent, mutually acceptable third-party audit Netscape's applicable records in order to verify the accuracy of the amounts invoiced to Advertiser hereunder. Advertiser may not exercise its audit right more than twice during the period extending from the display start date until six months after the end of the term of this Insertion Order. Any such audit shall occur on at least fifteen (15) business days prior notice, shall commence not later than ninety (90) days after the date of such notice (but no later than six months after the end of the term of this Insertion Order), and shall be conducted during AOL's normal business hours in such a manner so as not to interfere with the normal business activities of AOL. The auditor may not be paid on a contingency or other basis related to the outcome of the audit, and shall first execute a confidentiality agreement with AOL in a form mutually acceptable to AOL that prohibits the auditor from disclosing information obtained in connection with the audit other than to Advertiser of the amount of any such inaccuracy, except to the extent reasonably necessary to enforce its rights under this Insertion Order. If such audit reveals an overpayment by Advertiser, or an invoiced amount in excess of the correct amount (any of which have not been corrected in subsequent periods), then AOL shall reconcile the difference (by paying the difference or providing reduced future invoiced amounts) within thirty (30) days after the conclusion of the audit. If such audit reveals an underpayment by Advertiser or an invoice.
Advertiser shall not issue any press releases or public statements concerning the existence or terms of this Insertion Order without the prior written approval of AOL. The failure of advertiser to obtain the prior written approval of AOL shall be deemed a material breach of this Insertion Order.
AOL 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 this Insertion Order, and for a period of three years following expiration or termination of this Insertion Order, to prevent the duplication or disclosure of Confidential Information of the other party other than by or to its employees or agents who must have access to such Confidential Information to perform such Party's obligations hereunder, which 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 will provide at least five (5) business days prior written notice of such proposed disclosure to the other Party and submit a request to such governing body that such portions and other provisions of this Insertion Order 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 this Insertion Order, 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 this Insertion Order and information about AOL 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 this Insertion Order, 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.
Representations and Warranties
Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; and (ii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
Advertiser acknowledges that the sole obligation of America Online, Inc., and its affiliates, including, without limitation, Netscape Communications Corporation, Inc., CompuServe Interactive Services, Inc., Digital City, Inc., ICQ, Inc. and MovieFone, Inc. (collectively "AOL") is to display a bookmark text link (the "Bookmark") from Advertiser which conforms to the specifications set forth in the Insertion Order which has been executed by AOL and Advertiser (collectively with these Standard Terms and Conditions, the "Insertion Order") through the Designated Service(s). The "Designated Service(s)" shall mean the standard version of any AOL owned or operated property which is expressly identified in this Insertion Order as a location where the Bookmark will be displayed. The Designated Service(s), along with any other product or service owned, operated, distributed or authorized to be distributed by or through AOL or its affiliates worldwide, are herein referred to as the "AOL Network." Subject to Advertiser's reasonable approval, AOL shall have the right to fulfill its promotional commitments with respect to the Bookmark by providing Advertiser with comparable placements of the Bookmark in alternative areas of the AOL Network.
Except as expressly provided in the Insertion Order, the specific nature and positioning of the Bookmark will be as determined by AOL in its reasonable editorial discretion. AOL reserves the right to redesign or modify the organization, structure, "look and feel" and other elements of the AOL Network at its sole discretion at any time without prior notice. In the event such modifications will materially and adversely affect the placement of the Bookmark, AOL will work with Advertiser to display the Bookmark in a comparable location and manner that is reasonably satisfactory to Advertiser. If AOL and Advertiser cannot identify a substitute placement that is reasonably satisfactory to Advertiser, Advertiser shall have the right to cancel this Insertion Order, upon thirty (30) days advance written notice to AOL. Advertiser hereby acknowledges that the Bookmark, although pre-configured in certain versions of the Netscape browser, may be reconfigured, customized or deleted by end users. Advertiser will have no rights to comparable placement or cancellation in the event of such reconfiguration, customization or deletion. Advertiser may not resell, trade, exchange, barter or broker to any third-party any advertising space which is the subject of this Insertion Order. AOL may alter or shorten the flight dates set forth in the Insertion Order if advertising materials required per the Insertion Order are not provided in a timely manner, and Advertiser shall not be entitled to any refund or proration for delays caused by Advertiser's failure to deliver such materials.
Limitation of Liability; Disclaimer; Indemnification
(A) SUBJECT TO SECTION 6 ABOVE AND SUBSECTION 10(C) BELOW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED FOR HEREIN. AOL SHALL NOT IN ANY EVENT BE LIABLE TO ADVERTISER UNDER THIS INSERTION ORDER FOR MORE THAN THE AMOUNT TO BE PAID BY ADVERTISER DURING THE YEAR IN WHICH THE LIABILITY ACCRUES. (B) AOL MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK 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, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (I) THE NUMBER OF PERSONS WHO WILL ACCESS THE ADVERTISER CONTENT OR "CLICK-THROUGH" THE ADVERTISEMENTS, (II) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM INCLUDING THE ADVERTISEMENT WITHIN THE AOL NETWORK AND (III) THE FUNCTIONALITY, PERFORMANCE OR OPERATION OF THE AOL NETWORK WITH RESPECT TO THE ADVERTISEMENTS. (C) Advertiser hereby agrees to indemnify, defend and hold harmless AOL and the officers, directors, agents, affiliates, distributors, franchises and employees of AOL 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, trademark 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 Bookmark or Advertiser Content; (b) arising out of any material breach by Advertiser of any duty, representation or warranty under this Insertion Order; or (c) relating to any contaminated file, virus, worm or Trojan horse originating from the Bookmark or Advertiser Content. AOL shall notify Advertiser of any claim, action or demand (an "Action") for which indemnity is claimed. Advertiser's counsel defending such Action shall be subject to AOL's prior written approval. AOL reserves the right to participate fully in and assume joint control of the defense of any Action. Settlement of any Action shall be subject to AOL's prior written approval. This section shall survive the completion, expiration, termination or cancellation of this Insertion Order.
(a) The parties to this Insertion Order 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. (b) The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Insertion Order or to exercise any right under this Insertion Order 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 this Insertion Order 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. (c) Neither Party will be liable for, or be considered in breach of or default under this Insertion Order on account of any delay or failure to perform as required by this Insertion Order 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. (d) Advertiser shall not use, display or modify AOL's trademarks in any manner absent AOL's express prior written approval. (e) Either party may terminate this Insertion Order at any time with written notice to the other party in the event of a material breach of this Insertion Order 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 AOL required in the Insertion Order shall be ten (10) days rather than thirty days. AOL may terminate this Insertion Order 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, AOL may terminate this Insertion Order upon thirty (30) days prior written notice to Advertiser. Following termination, AOL may continue to distribute any copies of the Netscape browser that were released during the term of this Agreement. (f) This Insertion Order sets forth the entire agreement between Advertiser and AOL, and supersedes any and all prior agreements of AOL or Advertiser with respect to the transactions set forth herein. No change, amendment or modification of any provision of this Insertion Order shall be valid unless set forth in a written instrument signed by the party subject to enforcement of such amendment. (g) Advertiser shall not assign this Insertion Order or any right, interest or benefit under this Insertion Order without the prior written consent of AOL. Assumption of the Insertion Order by any successor to Advertiser (including, without limitation, by way of merger or consolidation) shall be subject to AOL's prior written approval. Subject to the foregoing, this Insertion Order shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. (h) In the event that any provision of this Insertion Order is held invalid by a court with jurisdiction over the Parties to this Insertion Order, (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 this Insertion Order shall remain in full force and effect. (i) This Insertion Order may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. (j) This Insertion Order 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 this Insertion Order. (k) Any notice or other communication under this Insertion Order 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 same 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. (l) 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 this Insertion Order.