YOUR ACCEPTANCE OF THIS AGREEMENT: This is an agreement between you ("you" or "your") and MyZipple.com ("MyZipple.com," "we," or "our") that governs your use of the MyZipple.com Web site ("Site" or "Web site")." When you access or use the Site in any way you agree to be bound by these Terms and Conditions ("Terms").
CHANGES: We may periodically change the Terms and the Site without notice, and you are responsible for checking these Terms periodically for revisions. All amended Terms become effective upon our posting to the Site, and any use of the site after such revisions have been posted signifies your consent to the changes.
HOW YOU MAY USE OUR MATERIALS:
We use a diverse range of information, text, photographs, designs, graphics, images, sound and video recordings, animation and other materials and effects on the MyZipple.com Web site.
We provide the information, content or advertisements (which we collectively call the "Materials") on the MyZipple.com site FOR YOUR PERSONAL, NON-COMMERCIAL USE ONLY.
Accordingly, You may view, use, copy, and distribute the Materials found on MyZipple.com Web sites for internal, noncommercial, informational purposes only. You are prohibited from data mining, scraping, crawling, or using any process or processes that send automated queries to the MyZipple.com Web site. You may not use the MyZipple.com Web sites to compile a collection of listings, including a competing listing product or service. You may not use the Site or any Materials for any unsolicited commercial e-mail. Except as authorized in this paragraph, you are not being granted a license under any copyright, trademark, patent or other intellectual property right in the Materials or the products, services, processes or technology described therein. All such rights are retained by MyZipple.com, its subsidiaries, parent companies, and/or any third party owner of such rights.
HOW YOU MAY USE OUR MARKS: The MyZipple.com company names and logos and all related products and service names, design marks and slogans are trademarks and service marks owned by and used under license from MyZipple.com or Fingertips LLC or its wholly-owned subsidiaries. All other trademarks and service marks herein are the property of their respective owners. All copies that you make of the Materials or this site must bear any copyright, trademark or other proprietary notice located on the site that pertains to the material being copied. You are not authorized to use any MyZipple.com name or mark in any advertising, publicity or in any other commercial manner without the prior written consent of MyZipple.com or or Fingertips LLC. Requests for authorization should be made to legal@MyZipple.com.
NO ENDORSEMENTS MADE BY MyZipple.com: We do not investigate, represent or endorse the accuracy, legality, legitimacy, validity or reliability of any products, services, deals, coupons or other promotions ("Promotions") or Materials, including advice, ratings, and recommendations contained on, distributed through, or linked, downloaded or accessed from the MyZipple.com Web sites.
References that we make to any names, marks, products or services of third parties or hypertext links to third party sites or information do not constitute or imply our endorsement, sponsorship or recommendation of the third party, of the quality of any product or service, advice, information or other materials displayed, purchased, or obtained by you as a result of an advertisement or any other information or offer in or in connection with the MyZipple.com Web sites (the "Products").
CONTENT DISCLAIMER: MyZipple.com communicates information provided and created by advertisers, content partners, software developers, publishers, marketing agents, employees, users, resellers and other third parties. MyZipple.com has no control over the accuracy of such information on our pages, and material on the MyZipple.com Web site may include technical inaccuracies or typographical errors.
We make no guarantees, nor can we be responsible for any such information, including its currency, content, quality, copyright compliance or legality, or any resulting loss or damage.
All of the data on Products and Promotions including but not limited to, the prices and the availability of any product or service or any feature thereof, is subject to change without notice by the party providing the Product or Promotion. You should use discretion while browsing the Internet.
MyZipple.com reserves the right, in its sole discretion and without any obligation, to make improvements to, or correct any error or omissions in, any portion of the Sites. Where appropriate, we will endeavor to update information listed on the Web site on a timely basis, but shall not be liable for any inaccuracies.
Links to external Internet sites are provided within the content on the Site as a convenience to users. The listing of an external site does not imply endorsement of the site by MyZipple.com or its affiliates. MyZipple.com does not make any representations regarding the availability and performance of its Web site or any of the Web sites to which we provide links. When you click on advertiser banners, sponsor links, or other external links from the Site, your browser automatically may direct you to a new browser window that is not hosted or controlled by MyZipple.com. MyZipple.com and its affiliates are not responsible for the content, functionality, or technological safety of these external sites.
We reserve the right to disable links to or from third-party sites to our Site, although we are under no obligation to do so. This right to disable links includes links to or from advertisers, sponsors, and content partners that may use our Marks as part of a co-branding relationship.
Some external links may produce information that some people find objectionable, inappropriate, or offensive. We are not responsible for the accuracy, relevancy, copyright compliance, legality, or decency of material contained in any externally linked Web sites. We do not fully screen or investigate business listing Web sites before or after including them in directory listings that become part of the Materials on our Site, and we make no representation and assume no responsibility concerning the content that third parties submit to become listed in any of these directories.
WARRANTY DISCLAIMER: Any use of the MyZipple.com Web site, reliance upon any Materials, and any use of the Internet generally shall be at your sole risk. MyZipple.com disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or material displayed in the MyZipple.com results.
THE SITE (INCLUDING MATERIALS AND INFORMATION THEREIN) ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. MyZipple.com DISCLAIMS, TO THE FULLEST EXTENT PERMITTED UNDER LAW, ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE SITE AND MATERIALS. MyZipple.com DOES NOT WARRANT THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE CONTENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
MYZIPPLE.COM DISCLAIMS ANY AND ALL WARRANTIES TO THE FULLEST EXTENT OF THE LAW, INCLUDING ANY WARRANTIES FOR ANY INFORMATION, GOODS, OR SERVICES, OBTAINED THROUGH, ADVERTISED OR RECEIVED THROUGH ANY LINKS PROVIDED BY OR THROUGH THE SITE.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
LIMITATION OF LIABILITY: IN NO EVENT SHALL MYZIPPLE.COM BE LIABLE TO ANY USER ON ACCOUNT OF SUCH USER'S USE, MISUSE OR RELIANCE ON THE SITE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, USE, OR DATA WHETHER BROUGHT IN WARRANTY, CONTRACT, INTELLECTUAL PROPERTY INFRINGEMENT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, EVEN IF MYZIPPLE.COM ARE AWARE OF OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, ARISING OUT OF OR CONNECTED WITH THE USE (OR INABILITY TO USE) OR PERFORMANCE OF THE SITE, THE MATERIALS OR THE INTERNET GENERALLY, OR THE USE (OR INABILITY TO USE), RELIANCE UPON OR PERFORMANCE OF ANY MATERIAL CONTAINED IN OR ACCESSED FROM ANY SITE. MYZIPPLE.COM DOES NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION, APPARATUS, PRODUCT OR PROCESS DISCLOSED ON THE SITE OR OTHER MATERIAL ACCESSIBLE FROM THE SITE.
THE USER OF THIS SITE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS SITE AND THE INTERNET GENERALLY.
THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO ALL USERS; IN SUCH STATES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
MONITORING OF MATERIALS TRANSMITTED BY YOU: Changes may be periodically incorporated into this Site. MyZipple.com may make improvements and/or changes in the products, services and/or programs described in these Sites and the Materials at any time without notice.
We are under no obligation to monitor the material residing on or transmitted to this Site. However, anyone using this Site agrees that MyZipple.com may monitor the Site contents periodically to (1) comply with any necessary laws, regulations or other governmental requests; (2) to operate the Site properly or to protect itself and its users. MyZipple.com reserves the right to modify, reject or eliminate any material residing on or transmitted to its Site that it, in its sole discretion, believes is unacceptable or in violation of the law or these Terms and Conditions.
DELETIONS FROM SERVICE: MyZipple.com will delete any materials at the request of the user who submitted the materials or at the request of an advertiser who has decided to "opt-out" of the addition of materials to its advertising, including, but not limited to ratings and reviews provided by third parties. MyZipple.com reserves the right to delete (or to refuse to post to public forums) any materials it deems detrimental to the system or is, or in the opinion of MyZipple.com, may be, defamatory, infringing or violate of applicable law. MyZipple.com reserves the right to exclude Material from the Site. Materials submitted to MyZipple.com for publication on the Site may be edited for length, clarity and/or consistency with MyZipple.com Editorial Standards.
INDEMNIFICATION: You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of these Terms, your violation of any law, or your violation of the rights of a third party, including the infringement by you of any intellectual property or other right of any person or entity. These obligations will survive any termination of the Terms.
INTELLECTUAL PROPERTY COMPLAINTS: We do not make it our responsibility to monitor the use of trademarks, copyrights or other rights of third parties. We may, however, in appropriate circumstances and at our discretion, remove, suspend, terminate access, or take other appropriate action against users, members or other third parties who infringe the copyright rights of others. Therefore, if you reasonably believe that any Materials on this Site contains unauthorized reproductions of your copyrighted work or trademarks, or links to sites containing unauthorized reproductions of your copyrighted work or trademarks, and you want us to take any action, then you must provide the following information to us (as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512)): A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed; Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; Information reasonably sufficient to permit us to contact you, such as an address, telephone number and e-mail address; A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; A statement that the information in the notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please e-mail this information to legal@MyZipple.com.
MISCELLANEOUS: These Terms will be governed by and construed in accordance with the laws of the State of Connecticut, without giving effect to its conflict of laws provisions or your actual state or country of residence. If for any reason a court of competent jurisdiction finds any provision or portion of the Terms to be unenforceable, the remainder of the Terms will continue in full force and effect. These Terms constitute the entire agreement between us and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter of these Terms. Any waiver of any provision of the Terms will be effective only if in writing and signed by you and MyZipple.com. MyZipple.com reserves the right to investigate complaints or reported violations of these Terms and to take any action we deem necessary and appropriate. Such action may include reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties. In addition, we may take action to disclose any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information. MyZipple.com reserves the right to seek all remedies available at law and in equity for violations of these Terms.
TERMS AND CONDITIONS FOR INTERNET ADVERTISING
Scope. This is a contract (referred to herein as this "Agreement") between MyZipple.com or Fingertips LLC (hereinafter referred to as "us", "we" and "our") and the customer ("you" and "your") identified on the first page of this document (the "Order") for us to fulfill your order for our Advertising Products identified on the Order. This Agreement consists of the Order and these Terms and Conditions for Internet Advertising, (these "Terms and Conditions"). Except as otherwise expressly provided in these Terms and Conditions, in the event of any conflict between the terms of the Order or of these Terms and Conditions, the Order shall control.
Term. The term of this Agreement commences on the date of execution by you (either in writing or by electronic signature, including recorded oral acceptance of this Agreement of an Order presented by us and shall (subject to our right hereunder to terminate or suspend our performance or remove Advertising Products under circumstances specified in this Agreement) continue until we have fulfilled the Advertising Products specified in the Order for the Initial Term specified in the Order. Unless otherwise provided in the Order and except as provided below in these Terms and Conditions, upon expiration of the Initial Term, the term of this Agreement shall automatically renew for a "Renewal Term" unless you or we notify the other of its intent not to renew at least thirty days before expiration of the Initial Term. All services provided during the Renewal Term will be subject to the then-current Terms and Conditions, pricing and other terms for Internet Advertising available on our Web site (such then current Terms and Conditions being referred to herein as this Agreement). The Renewal Term will continue from expiration of the Initial Term until termination pursuant to this Agreement. Unless otherwise provided in the Order, either you or we may terminate the Renewal Term, with or without cause, upon thirty days' prior written notice to the other. Neither of us may terminate this Agreement during the Initial Term, provided that we may terminate this Agreement at any time upon notice to you if you breach this Agreement. If you choose to have your Advertising Products removed from any site and/or our services discontinued prior to the end of the Initial Term or Renewal Term, as the case may be, you shall notify us in writing and the unpaid balance for the entire Initial Term or Renewal Term will become immediately due and owing.
Third Parties. You represent and acknowledge that you are entering into this Agreement to obtain the Advertising Products for your own benefit and not for the benefit or on behalf of any third party, including, but not limited to, any of your shareholders, partners, owners, employees, agents or affiliates. However, each of our distribution or fulfillment vendors or internet search engines on which we place your advertising (each, a "Distribution Site") is an intended third-party beneficiary of your obligations hereunder that relate to Advertising Products and may independently enforce each obligation directly against you.
Rates and Payment. Unless otherwise provided in the Order, we will bill you during our first applicable billing cycle after we fulfill your order for Advertising Products and will continue to bill you during each applicable billing cycle thereafter during the term of this Agreement. The billing cycle will be thirty (30) days unless otherwise provided in the Order. We will bill you for Advertising Products for which no rate is specified in the Order at our standard rates for such Advertising Products at the time that we provide such Advertising Products. Any rates specified in the Order will apply during the Initial Term only. Unless you or we terminate this Agreement at the end of the Initial Term, you will be invoiced for each billing cycle of the Renewal Term at our standard rates during such billing cycle for such Advertising Products. Such standard rates may be higher than the rates set forth on the Order. Payments are due on the due date specified on the invoice or, if no payment date is specified, then thirty days after the date of the invoice. We may remove, or (in the case of Advertising Products placed on Distribution Sites) cause to be removed, your Advertising Products and suspend our services hereunder if payment is not received by the due date. Your prompt payment of any costs that we incur to suspend services or remove or cause removal of Advertising Products, or to resume services or replace or cause replacement of Advertising Products, will be a condition to our resumption of services and the replacement of Advertising Product. You acknowledge that no such suspension or removal will extend the term of this Agreement and, therefore, that it will reduce the aggregate time that we fulfill your order. We may charge late payment fees that will accrue at our then-current standard rates or, if lower, the maximum rate permitted under applicable law. You agree to pay any attorneys' fees and costs that our agents or we incur in collecting any unpaid amount. You will pay any sales, use or other local, state, federal, foreign or other taxes or governmental fees arising out of or in connection with this Agreement, other than taxes based on our net income.
Prohibitions, Content and Intellectual Property Rights. The transmission of any unsolicited commercial e-mail messages through our services is strictly prohibited without the prior consent of the recipient. You acknowledge that neither we nor the Distribution Sites generate the content upon a site where your Advertising Product may be fulfilled and that neither we nor the Distribution Sites are responsible for such content. You acknowledge that it is not possible to avoid placing your advertisements on web sites that display adult content, have adult-oriented domain names, or that are primarily intended as gambling sites, you acknowledge that it is not possible to avoid all such placements, and that we shall in no event have any liability to you of any type or nature as a result of any such placement or any other such placement that may be offensive to you. We or any Distribution Site may refuse, remove and/or terminate Advertising Products and our services due to any content that we or a Distribution Site deem for any reason (a) may subject us, a Distribution Site or another party to liability, (b) includes obscene, profane, sexual, violent or other inappropriate content, or (c) is otherwise unacceptable in our or the Distribution Site's sole discretion; provided that we have no obligation to review your advertisements and shall have no liability related to the content thereof. If this occurs, you will remain responsible for payment of all amounts to be invoiced for the then-current term and will not be entitled to any refund or abatement or any extension of the term of this Agreement. Furthermore, you are making the following representations and both we and each Distribution Site are relying upon them: (a) that you are authorized to advertise and display the requested business, product or service, (b) you are a business, not a consumer, (c) that the content of any advertisement is truthful and not misleading, (d) that you are in compliance with all laws and licensing requirements relating in any manner to the goods or services displayed or to your advertisement, and e) that you have the right to use and publish any requested name, address, trade name, trademark, service mark, picture, likeness, reproduction, endorsement, copyrighted or copyrightable item or other content and that such use complies with all applicable laws, license agreements and other obligations. Without limiting any of our other rights or remedies, you agree to notify us immediately in writing at any time that you discover or suspect that any of these representations is not true and correct in all respects. You assume sole responsibility for the protection of any copyrights, trademarks, service marks, trade names and other intellectual property owned wholly or partially by you or which you are authorized to use or display. If we receive notice or documentation demonstrating that another person or entity contests your right to use or display a name, trademark, service mark or other content, we may reject or discontinue the Advertising Products and our services without liability to you until such time you have resolved that dispute with the other party to our satisfaction. As to Advertising Products we create for you, whether in whole or in part, and any derivative work that we create from your content, you acknowledge that we are an author and assign to us all rights in and to any independently copyrightable contribution you might have made to the advertising. You further acknowledge that we retain all right, title and interest, including the copyright, in such Advertising Products and that neither you nor we intend for such advertising to constitute a joint work. You grant us a nonexclusive license during the term of this Agreement, including the right to sublicense, to copy, distribute, create derivative works based upon, publicly display, publicly perform and otherwise use any trademark, service mark, graphics, text or other content you provide to us in connection with our performance of our obligations under this Agreement. Upon termination of this Agreement, we are not obligated to return any of these works to you.
Design of Our Sites, Advertising Products, Statistics and Interruption of Our Services. We and the distribution sites may redesign or modify the organization, structure and/or "look-and-feel" of our respective Web sites, Advertising Products, and published set of headings and directories at any time and without notice; we may discontinue or add Distribution Sites at any time in our sole discretion. Although we assign each Advertising Product an internally generated point value and/or seniority date, such assignment is internal to us and does not confer any rights to you. We or any Distribution Site may position your advertisement on any page within the appropriate sites, in any position upon such page, in any sequence and in association with any classified heading or keyword(s) we or any Distribution Site deems appropriate unless otherwise specifically noted in the Order.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THE ORDER, NEITHER WE NOR ANY DISTRIBUTION SITE MAKES ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES TO YOU OF ANY KIND, EITHER EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE), REGARDING THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF THE ADVERTISEMENTS OR ADVERTISING PRODUCTS, LINKED SITES, ANY SITE WE MAY CREATE FOR YOU, OR OTHERWISE UNDER OR RELATED TO THIS AGREEMENT.
Assignment. You may not resell, assign, transfer or delegate any of your rights, duties or obligations without our prior written consent, which we may grant or withhold in the exercise of our absolute and sole discretion; in the event we give such consent, the assignee must, without any reservation, assume all of your rights, duties and obligations. Any attempt to resell, assign, transfer or delegate such rights, duties or obligations without our prior written consent shall constitute a breach of this Agreement and shall be of no force or effect. We shall have the right to subcontract performance of our obligations hereunder or to assign or otherwise transfer this Agreement or any of our rights, obligations or duties hereunder to any person or entity at any time. Notices. All of our notices, demands and other communications must be in writing and will be deemed to have been given (a) if mailed by certified mail, postage prepaid, (b) if delivered by overnight courier, (c) if sent by facsimile transmission and such transmission is confirmed as received, or (d) if sent by electronic mail, and such message is confirmed as received, in each case to the address, fax number or e-mail address specified on the Order for the recipient of such notice. All of your notices, demands and other communications must be in writing and will be deemed to have been given (a) if mailed by certified mail, postage prepaid or if delivered by overnight courier, to our address: MyZipple.com, 300 Taintor St., Suffield, CT 06078.
Liability. NEITHER WE NOR ANY DISTRIBUTION SITE NOR ANY OF OUR OTHER VENDORS SHALL HAVE ANY LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE ADVERTISING PRODUCTS FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE, LOSS OF GOODWILL, THE REJECTION OR REMOVAL OF ANY ADVERTISING CONTENT, ANY DELAY IN DISPLAYING OR OUR FAILURE TO DISPLAY CONTENT, OR OUR FAILURE TO PERFORM SERVICES. WITHOUT LIMITING THE PROVISIONS OF SECTION 13, IN NO EVENT SHALL OUR LIABILITY FOR MONETARY DAMAGES EXCEED THE AMOUNT YOU HAVE ACTUALLY PAID TO US FOR THE ADVERTISING PRODUCTS OR OTHER SERVICES WITH RESPECT TO WHICH SUCH LIABILITY AROSE. You acknowledge and agree that the provisions of this Agreement that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of this Agreement and are fundamental to the parties' understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions of this Agreement and shall be enforced regardless of any breach hereof or other occurrence or condition relating in any way to this Agreement or the Advertising Products. Without limiting the generality of the foregoing, YOU AGREE THAT ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS OF CONSEQUENTIAL DAMAGES OR OTHER DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID, EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCES THAT CAUSE ANY EXCLUSIVE REMEDY UNDER THIS AGREEMENT TO FAIL OF ITS ESSENTIAL PURPOSE. The limitations contained in this Section 13 apply regardless of the form of action, including actions in contract, tort (including negligence), and strict liability.
Exclusive Remedies. If we breach our obligation hereunder to fulfill any Advertising Product or breach any other obligation hereunder, we will make commercially reasonable efforts to fulfill such Advertising Product at a later date on the same or substitute site or internet search engine or otherwise reasonably to cure such breach. THE FOREGOING CONSTITUTES OUR SOLE OBLIGATION AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH BY US OF THIS AGREEMENT (EITHER DIRECTLY OR THROUGH A FAILURE OF PERFORMANCE BY ANY DISTRIBUTION SITE).
Force Majeure. In no event shall we or any Distribution Site have liability or be deemed to be in breach hereof for any failure or delay of performance resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, network failure, riot, explosion, embargo, strikes (whether legal or illegal), terrorist act, labor or material shortage, transportation interruption of any kind or work slowdown or any other condition not reasonably within our control. Your payment obligations shall continue during any event of force majeure.
Indemnification. You agree to indemnify us and the Distribution Sites and hold us and the Distribution Site harmless from and with respect to any claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, actual attorneys' fees) that may at any time be incurred by us or them arising out of or in connection with this Agreement or any Advertising Products or services you request, including, without limitation, any claims, suits or proceedings for defamation or libel, violation of right of privacy or publicity, criminal investigations, infringement of intellectual property, false or deceptive advertising or sales practices and any virus, contaminating or destructive features.
Telephone Conversations. All telephone conversations between you and us about your advertising may be recorded and you hereby consent to such monitoring and recordation.
Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York applicable to contracts entered into and performed in New York by residents thereof. Any action or proceeding brought by you under or relating to this Agreement shall be brought in a state or federal court located in the City of New York, State of New York, and you hereby irrevocably submit to the personal jurisdiction of and irrevocably consent to venue in such courts for purposes of any such action or proceeding. Any claim against us arising from this Agreement shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy by any other party.
Entire Agreement. This Agreement constitutes the entire agreement between you and us with respect to the subject matter of this Agreement and supersedes all prior written and all prior or contemporaneous oral communications regarding such subject matter. Accordingly, you should not rely on any representations or warranties that are not expressly set forth in this Agreement. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Except as provided in Section 1, this Agreement may not be modified except by writing signed by you and us; provided, however, we may change these Terms and Conditions from time to time, and such revised terms and conditions shall be effective with respect to any Advertising Products ordered after written notice of such revised terms to you or, if earlier, posting of such revised terms and conditions on our Web site.
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