Advertising Agreement Terms and Conditions
(Rev. October 2013)
"You" means the individual or business entity listed as Advertiser above. "We," "us" and "our" means Nightlife, LLC. "Ads" or "Ad" means your advertising on various electronic media, including but not limited to the nightlifetonight.com service, or other websites we own, the wireless platform Nightlife, and other mobile applications we own and for which we have agreements with third parties from time to time (collectively our "Electronic Platform"). You agree that this Advertising Agreement Terms and Conditions and any additional terms and conditions ("Additional Terms") that we publish from time to time on our Electronic Platform are incorporated into this Advertising Agreement or that are included in any addenda we provide to you (together, the "Agreement") apply to the Ads and services (together, "Services") listed on our Electronic Platform. By agreeing to the Services through our Electronic Platform, you are agreeing to all of the terms and conditions and the Additional Terms in this Agreement. The Agreement is as follows:
1. Services and Term. By signing below or by agreeing to the Services through our Electronic Platform you authorize us to publish the Ads in the applicable Electronic Platform and to provide the Services listed on our Electronic Platform. The term of this Agreement is the date you sign this Agreement or the date you agree to the Services via our Electronic Platform and will continue on for twelve (12) months, ending on the last day of the twelfth (12th) month ("Term").
2. Notices/How to Contact Us. All notices to us must be in writing and mailed or emailed to Nightlife, LLC at the address or email address shown in the applicable Electronic Platform.
3. Automatic Renewal. We may automatically renew your Services after the end of the initial term for a successive 12-month term unless we receive written cancellation notice at least 30 days before the end of the final month of your Ads. You agree that the then current undiscounted rates and terms and conditions will apply to automatically renewed Services.
4. Cancellation/Termination. You may cancel your request for Services and terminate this Agreement at any time by written notice after the Term begins. Any payment made for Services prior to cancellation are non-refundable and not subject to being prorated during the month of cancellation. Cancellation notices must include your business name, telephone number, and address. For questions about this Agreement or your advertising, please call Customer Care at the applicable phone number provided on our Electronic Platform. We may cancel your Services without notice at any time for any reason.
5. Charges/Billing-Monthly Ads. You agree to pay the monthly rates listed on our Electronic Platform for the Term. You also agree to pay any one-time charges and any taxes due on your Services. We may start billing before we publish or distribute Ads or begin providing Services.
6. Payment Terms. We may require full or partial advance payment prior to providing any Services. You authorize us to review your credit history and to obtain your credit report, and you agree that we may disclose to third parties information about you that we deem necessary to assess your credit rating or report your failure to make payments as required by this Agreement. We may apply payments from you, or monies owed to you, toward amounts owed under this Agreement or any other amounts you owe us. We will bill the card automatically at the start of each billing period.
7. Late Charges. We will assess, and you agree to pay, late charges on account balances not paid by the due date (including balances accelerated under Section 8). Late charges will begin to accrue after the due date at a rate equal to the lesser of 18% per annum or the highest lawful rate. In addition, if you submit a check or draft that is dishonored for any reason, you agree to pay, in addition to the face amount of the check or draft, a service fee in an amount equal to the highest lawful amount.
8. Our Remedies. If you do not pay all charges within ten (10) days after the due date, fail to meet any other obligation under this Agreement or under any other agreement between us, or make any representation or warranty that is or becomes untrue, we may, without notice: (i) require you to pay immediately all unpaid amounts you owe and will owe for all Services for the entire Term of this Agreement; (ii) remove, suspend, or modify your Ads; (iii) suspend or terminate any Services; (iv) recover all collection costs and attorneys' fees; and (v) pursue any other available legal or equitable remedies.
9. Limitation of Liability/Disclaimers. You agree to review the Ads and Services immediately after their publication or provision and to notify us in writing of any errors or omissions no later than 30 days after the error is first published or displayed or the Ad or Services omitted. If the error or omission was our mistake, you agree that we may provide free advertising pursuant to our then-current policies instead of a refund or credit to your account, and that we will have no liability with respect to any listings, Ads or Services provided to you at no cost. The total aggregate liability for us and our affiliates for errors in or omission of the Ads or Services, negligence, any breach of this Agreement, and any other cause of action or wrongful act is limited to, and shall in no event exceed, the lesser of (a) the amount by which the value of the Ad or Service was diminished or (b) the amount you have paid us for the Ad or Service giving rise to the liability (the "Liability Cap"). We are not liable for consequential damages, punitive damages, incidental damages, or damages for harm to business, lost revenues, profits, or goodwill, or any other special damages, whether the claim is based on negligence, breach of contract or express or implied warranty, strict liability, misrepresentation, statute, tort, or any other theory of recovery, even if you or we knew such damages could or may result. WE DISCLAIM ANY OBLIGATIONS, REPRESENTATIONS, OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, THAT ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, we do not warrant the number of responses to your Ads, the number of persons who will view your Ads, or any other business benefit. The limitations in this Section shall apply notwithstanding any failure of essential purpose under this Agreement. We are not liable to you for any deviation from or change in our policies, practices, and procedures, including without limitation those regarding the placement, position, or location of Ads, headings, or categories.
10. Waiver of Class Action and Jury Trial and Consent to Binding Arbitration. In any legal proceeding relating to this Agreement, the parties agree to waive any right they may have to participate in any class, group, or representative proceeding and to waive any right they may have to a trial by jury. Any claim, controversy, or dispute that arises under or relates to this Agreement (other than claims to collect amounts you owe us) or claims by you alleging breach of this Agreement to recover amounts you have paid us, including any dispute regarding any listing, Ad or Service, any omissions, incorrect phone numbers or other errors, and any Ad placement concerns, shall be referred by the aggrieved party to binding arbitration under the Commercial Rules of the American Arbitration Association, such arbitration to be held in St. Louis County, Missouri.
11. Products/Publication/Distribution. We reserve the sole right to determine (and may change at any time without notice to you) the design, content, size, geographic coverage, distribution, and appearance of, and the types of advertising offered in, our Electronic Platform and Services and how, where, how many, when, and whether they are published, distributed, reissued, or displayed. We may reject all or any portion of Ads or Services at any time and for any reason (even if previously approved). If rejected, we will, as our sole obligation, refund any advance payments for that Ad or Service. If we receive allegations of copyright or trademark infringement, we may remove the disputed content immediately. We may change content to conform to our standards, practices and policies or the policies of any third party on whose site, platform or network any Ad is published. We may publish the Ads of any other advertiser at any time and at any location in our Electronic Platform.
12. Proofs. We do not guarantee that we will provide you with proofs of your Ads. If we do provide proofs in time for modifications, you must notify us in writing of any changes/errors before the deadline we set. Otherwise, we will publish the Ad or perform the Service as shown and no adjustment will be made. Colors, contrast, photos, font, graphics, and other features may appear differently in the published product and no adjustments will be made for those differences.
13. Ad Placement. Except for Ads we designate as limited inventory advertising, we do not guarantee the placement or position of any Ad (or the Ad of any other advertiser) on or within any Electronic Platform and will not provide any adjustments on claims relating to placement for any Ad.
14. Advertiser Content. "Advertiser Content" means content you, or any person(s) using your password, supplies to us, posts, or asks us to use in your Ads. You grant us a perpetual, royalty-free, sub-licensable, non-exclusive right and license to use, copy, record, modify, display, publish, publicly perform, distribute (in any form or media), transmit by any means, and create derivative works from the Advertiser Content in, and for the marketing and sale of our products and services. You are solely responsible for the Advertiser Content and will produce and deliver all Advertiser Content in accordance with our then current guidelines, procedures, technical requirements, and deadlines. If you fail to comply, we may cancel or suspend your Ads or Services.
15. Our Rights in Advertising Content/Copyright/Trademarks. If we create or supply any content for your Ads or design your Ads, the content and the Ads we create are our sole and exclusive property ("Intellectual Property"), except for Advertiser Content and content we license from a third party. We may supply such Intellectual Property to other advertisers. You agree that you have no right to use that Intellectual Property or the advertising developed with that Intellectual Property in other advertising or materials or in any other way, or to permit others to use the Intellectual Property. You agree that we own the copyright in, and all copyrighted portions of, each Electronic Platform. You agree not to use or alter any trademark, trade name, trade dress or any name, picture or logo that is commonly identified with us or our affiliates, unless prior permission is granted by us in writing.
16. Advertiser's Representations. You represent and warrant that: (i) you have the unrestricted right to use, and to grant the licenses you grant in this Agreement with respect to, all Advertiser Content and that your licensing of Advertiser Content to us will not infringe any third party copyright or trademark rights; (ii) Ads you provide and Advertiser Content comply with all applicable laws, orders, codes, regulations and requirements and you and any individuals listed in your Ads and Advertiser Content have all required licenses to provide the goods and services advertised in all jurisdictions where the Ads and Advertiser Content appear; (iii) you have not made any false or misleading claims in any Ad and Advertiser Content; (iv) you have not requested, and will not use, the Ads or Services, or our Electronic Platform for any unlawful purpose or business; (vi) you have not violated any contractual or legal obligation by signing this Agreement and requesting us to publish any Ad and Advertiser Content; and (vi) you are or represent the business related to the Ads and Services. You will notify us immediately if any of the above becomes inaccurate.
17. Indemnification. You agree to defend, indemnify and hold us and our affiliates harmless from any liability or costs, including attorneys' fees and expenses, resulting from: (a) any breach of your representations, warranties or covenants; (b) any act, omission or fault of you or your employees, agents or contractors in connection with the Ads or Services; (c) any claim that the Advertiser Content or other information provided by you violates any applicable law or infringes on any third party patent, copyright, trademark, trade secret or other intellectual property or proprietary right; (d) any communication through your Ads or your collection or use of any information obtained through your Ads, the Services or our Electronic Platform; (e) any breach of any applicable export control laws; and (f) any transactions initiated through your Ads and any payment processing services. You will continue to be obligated by this Section even after the termination of this Agreement.
18. Governing Law. Jurisdiction. You agree that this Agreement will be governed by and construed in accordance with, and all matters relating to or arising under this Agreement will be governed by Missouri law without reference to the laws relating to conflicts of laws. The sole and exclusive venue for any and all disputes arising out of or related to claims to collect amounts you owe us shall be the state courts of Missouri in St. Louis County, Missouri and/or the United States District Court for the Eastern District of Missouri.
19. Entire Agreement. This Agreement constitutes the entire agreement between you and us and supersedes all prior agreements and representations, whether express or implied, written or oral, with respect to the Ads and Services. You agree not to include any limiting endorsement on a check or other form of payment, and we may cash a check containing a limiting endorsement or accompanied by any limiting instruction without affecting your obligations or our rights. You are not authorized to change or add to this Agreement or any other documents that are part of this Agreement in any way, and any purported change or addition, whether oral or written, is void. We are authorized to create Additional Terms through our Electronic Platform, in our sole discretion.
20. Miscellaneous. This Agreement is binding on and for the benefit of you and your successors. We may assign this Agreement, but you may not assign any of your rights or delegate any of your duties under this Agreement without our prior written consent. Except as otherwise set forth in this Agreement, neither you nor we will lose any of our rights under this Agreement, even if you or we do not enforce a right or delay in enforcing a right. Neither party will be liable for any damages arising from acts of God or events outside of that party's reasonable control. If any provision of this Agreement is found to be unenforceable, the rest of this Agreement will remain in full force and effect. Our imaged copy of this Agreement will be deemed a duplicate original for evidentiary purposes.
21. Contact by Us. You agree that we may contact you regarding your Ads or Services, or offers to provide Ads or Services, whether by live telephone, recorded message, U.S. mail or other mail, facsimile or e-mail. You agree that telephone conversations between you and us or our agents may be monitored and/or recorded.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE.