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CompuServe/Netscape/MapQuest Yellow Pages Listing Standard Terms & Conditions (v.2)
Display of Advertising Material
Advertiser acknowledges that the sole obligation of America Online, Inc and its affiliates, including, without limitation, Netscape Communications Corporation, CompuServe Interactive Services, Inc., Digital City, Inc., ICQ, Inc., MapQuest.com, Inc. and Moviefone, Inc. (collectively "AOL") is to display one or more listings (the "Listings") from Advertiser which conform 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 one or more Listings 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." AOL shall have the right to fulfill its promotional commitments with respect to the Listings by providing Advertiser with comparable placements of the Listings in alternative areas of the AOL Network and may display the Listings in any area within the AOL Network where the yellow pages (or any successor) product is displayed. Except as expressly provided in the Insertion Order, the specific nature and positioning of the Listings 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 one or more of the Listings, AOL will work with Advertiser to display the affected Listings in a comparable location and manner. Without limitation to the foregoing, AOL may, at any time and in its sole discretion, revise or alter the categories within the Yellow Pages product and may place the Listings in a new category as a result thereof in its sole discretion. Advertiser may not resell, trade, exchange, barter or broker to any third-party any advertising space or Listing which is the subject of this Insertion Order.
Advertiser agrees that AOL has the right to market, display, reproduce (including compression and temporary storage as necessary for the standard operation of the AOL Network), distribute, perform, transmit and promote the Listings together with any content or materials on any interactive site linked to the Listings (the "Advertiser Content") through the AOL Network.
The Listings shall link only to the URL specified in the Insertion Order (if any) and shall not offer or promote any products and/or services other than the Advertiser products and services expressly provided for in the Insertion Order. In no event shall any Listing promote the products or services of any third-party. Additionally, Advertiser shall consistently review the Listings and provide AOL with information needed to update the Listings and shall update the Advertiser Content and review, delete, edit, create, update and otherwise manage the Advertiser Content in accordance with the terms of this Insertion Order. 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) all information relating to the Listings that it provides to AOL hereunder is accurate in all material respects, (b) 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 Listings or the Advertiser Content, and (c) neither the Listings nor the 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 Listings or the Advertiser Content state or imply that (i) any Listing 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 Listings or the Advertiser Content complies with all applicable federal, state and local laws and regulations.
Advertiser shall ensure that the Advertiser Content is in compliance with AOL's then-current, generally applicable technical standards for the Designated Service(s). In the event that 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 Listings, and if Advertiser is unable to cure such non-compliance within five (5) business days after notice from AOL, AOL shall have the right to terminate this Insertion Order. Additionally, AOL will be entitled to discontinue the Listings to the extent the Advertiser Content will, in AOL's good faith judgment, adversely affect the operations of the AOL Network.
Except with respect to the creation and placement of the Listings and 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 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 Listings or the Advertiser Content, and AOL will have no obligations whatsoever with respect thereto. Advertiser will collect, 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 Listings 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. The foregoing provisions of this section shall survive the completion, expiration, termination or cancellation of this Insertion Order.
AOL shall provide Advertiser with usage information related to the Listings 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 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. Because it would be difficult to precisely ascertain the extent of the injury caused to AOL, in the event of such a material breach, AOL may terminate this Insertion Order immediately following written notice to Advertiser without regard to any cure periods set forth herein.
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 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 this Insertion Order (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 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. This section shall survive the completion, expiration, termination or cancellation of this Insertion Order for the three year period specified herein.
Representations and Warranties
Each party to this Insertion Order represents and warrants to the other party that: (i) such party has the full corporate right, power and authority to enter into this Insertion Order and to perform the acts required of it hereunder; and (ii) when executed and delivered by such party, this Insertion Order will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
Advertiser agrees to pay AOL for all listings displayed in accordance with the agreed upon amounts and billing schedule shown on the Insertion Order. Listing packages are not refundable or proratable except to the extent otherwise expressly stated herein. In the event Advertiser is not in compliance with any material term of this Insertion Order, AOL shall have the right (in addition to any other remedies available to AOL hereunder) to suspend the Listings until such time as Advertiser corrects its non-compliance. Should AOL suspend the display of the Listings in accordance with the foregoing, Advertiser will remain liable for the full amount indicated on the Insertion Order.
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. In addition, AOL shall have the right to terminate this Insertion Order upon a material breach by Advertiser of any other written agreement with AOL to which Advertiser is a party, which material breach remains uncured after any notice and cure period set forth in such agreement. Should AOL terminate this Insertion Order due to Advertiser's failure to comply with any requirement of this Insertion Order or other written agreement with AOL, Advertiser will remain liable for the full amount indicated on the Insertion Order. 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. AOL reserves the right to terminate this Insertion Order 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 AOL in the event that AOL believes in good faith that further display of the Listings will expose AOL to liability or other adverse consequences). In the event of a termination in accordance with the foregoing sentence which is not due to Advertiser's failure to comply with any requirement of this Insertion Order or any other written agreement with AOL, Advertiser will only be responsible for the pro-rata portion of payments attributable to the period from the commencement of the Insertion Order through the effectiveness of such termination.
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. 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. 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. Advertiser shall not use, display or modify AOL's trademarks in any manner absent AOL's express prior written approval. 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. 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. 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. 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. 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. 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. 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.