Terms of Service
This DealNews Flat Fee Agreement (hereinafter referred to as the "Agreement") is by and between DealNews.com, Inc. (hereinafter referred to as "DealNews"), a Delaware corporation, with its principal place of business at 203 Greene Street SE, Huntsville, AL 35801, and the client identified on the signature page (hereinafter referred to as "Client").
WHEREAS, DealNews operates a network of web sites on the Internet whereby it promotes various products and services (hereinafter referred to as the "DealNews Web Sites"); and
WHEREAS, Client has a web site or a network of web sites on the Internet through which users can purchase products and services; and
WHEREAS, DealNews desires to publish Client's pricing on various products and services on the DealNews Web Sites and enable users to link to Client's web site or network of web sites to purchase such products and services; and
WHEREAS, Client desires to have its products and services listed on the DealNews Web Sites.
NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein, and intending to be legally bound, the parties, subject to the terms and conditions set forth herein, agree as follows:
1. GENERAL. DealNews will include Client's product and pricing information, as selected by DealNews, in the database of DealNews and on DealNews Web Sites and provide links to Client's web site or network of web sites to enable users of the DealNews Web Sites to link to Client's web site or network of web sites to purchase products and services from Client.
2. REPORTING. DealNews shall provide Client with access to an online transaction summary report that details Client's campaign activity. In the event that technical problems prevent Client from accessing the report, DealNews shall make every effort to restore report access to Client in a timely manner.
3. FEES AND PAYMENT. Client agrees to pay the fees as detailed in Appendix A.
4. AUDIT. In the event that Client disagrees with the activity reports provided in accordance with Section 2, a written request should be sent during the term of the Agreement and within fifteen days of its receipt of the applicable invoice from DealNews. Client shall be responsible for payment of the entire invoice while DealNews conducts the internal audit. DealNews shall provide Client with the results of the audit, which shall be final and binding on the parties.
4. TERM. The Term of this Agreement shall commence on the date that the last party signs this Agreement as set forth on the signature page and shall continue for a period of one year until cancelled by either party in accordance with Section 8. The Agreement shall renew automatically on each anniversary of the agreement unless either party terminates the agreement by providing fourteen (14) days written notice in accordance with the provisions in Section 22.
5. LICENSE TO USE CLIENT MARKS. (a) Subject to the terms and conditions of this Agreement, Client hereby grants to DealNews a limited, non-exclusive, non-transferable, royalty-free license to use Client's trademarks, trade names, service marks, logo and copyrights (hereinafter referred to as "Client Marks") as well as the copy, product images and product logos displayed on Client's web site (hereinafter referred to as "Client Content") on the DealNews Web Sites in accordance with this Agreement. DealNews admits and recognizes Client's exclusive ownership of the Client Marks. DealNews agrees not to take any action inconsistent with Client's ownership of the Client Marks and Client Content; and (b) Client represents and warrants that Client has, and will have throughout the Term of this Agreement, the right and authority to grant DealNews the licenses and usage rights to the Client Marks and Client Content as required under this Agreement.
6. INTENTIONAL MANIPULATION OF DEALNEW WEB SITES. Client warrants that it will not, directly or indirectly through third parties, attempt to artificially influence or manipulate the DealNews Web Sites by employing bots, referrer spam or other artificial visits to attempt to influence DealNews’ internal traffic and click analytics systems. Breach of this section will be grounds for immediate termination of the Agreement.
8. CANCELLATION AND TERMINATION. Either party may cancel this Agreement any time, for any reason or no reason, upon providing fourteen (14) days written notice in accordance with the provisions in Section 23. If DealNews determines that it will suffer irreparable harm to its image or reputation by allowing Client's products or services to remain listed on one or more of the DealNews Web Sites, DealNews may immediately cancel this Agreement and remove all of Client's products and /or services from the DealNews Web Sites. Upon the cancellation or termination of this Agreement, all licenses granted to DealNews hereunder shall immediately terminate. Furthermore, within 30 days of the termination of this Agreement for any reason, the Client shall pay to DealNews any and all amounts owed to DealNews pursuant to this Agreement.
8. RESERVATION OF RIGHTS. DealNews reserves the right to modify the design or functionality of the DealNews Web Sites, including modification of the placement of links to the Client web site or network of web sites. DealNews shall have absolute authority to change the look, feel and functionality of the DealNews Web Sites at any time.
9. RESPONSIBILITY FOR PRODUCT INFORMATION. (a) Client shall be solely responsible for any claims or losses resulting from warranty, return or support obligations associated with the product or product information provided and/or sold on Client's web site or network of web sites; and (b) DealNews does not have the authority to make any representations or warranties not contained in the product information contained on Client's web site or network of web sites.
10. INDEMNIFICATION. Each party (the "Indemnifying Party"), hereby agrees to defend, indemnify and hold harmless the other party and its subsidiaries and Clients, and their respective directors, officers, employees, agents, shareholders, partners, members and other owners (collectively, the "Indemnified Party"), against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses, including reasonable attorneys' fees (any or all of the foregoing hereinafter referred to as "Losses"), insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any false representation or warranty made by the Indemnifying Party, (ii) any breach by the Indemnifying Party of any covenant or agreement made by it herein or (iii) the use by the Indemnified Party of the Trademarks of the Indemnifying Party in accordance with the terms hereof.
11. MODIFICATION. DealNews may modify any of the terms and conditions contained in this Agreement, and will take commercially reasonable steps to notify Client of the modification. If a modification is unacceptable, Client may terminate this Agreement by giving notice of termination to DealNews and following the procedures in Section 8. If Client does not give DealNews notice within fourteen (14) days of such modification, then Client will be deemed to have accepted the modifications and such modifications shall become a part of this Agreement.
12. RELATIONSHIP OF PARTIES. Client and DealNews shall be deemed to have the status of independent contractors, and nothing in this Agreement shall be deemed to place the parties in the relationship of employer-employee, principal-agent, partners or joint venturers. Client does not have authority to make or accept any offers or make any representations on behalf of DealNews or that would otherwise contradict anything in this Section.
13. PUBLICITY. Neither party shall issue a press release or make any statement to the general public or any third party concerning this Agreement, or the relationship created thereby, without the express prior written consent of the other, which consent shall not be unreasonably withheld or delayed.
14. ENTIRE AGREEMENT. This Agreement represents the entire agreement and understanding between the parties and supersedes all prior agreements and understandings between them relating to the subject matter hereof. No terms and/or conditions other than those set forth in this Agreement shall be binding on DealNews unless expressly agreed to in writing by DealNews.
15. COUNTERPARTS. This Agreement may be executed in several counterparts, including facsimile counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one agreement binding on the parties hereto, notwithstanding that all the parties have not signed the same counterpart.
16. CONSTRUCTION. Each party intends that this Agreement in all respects shall be deemed and construed to have been mutually by all parties and it is hereby expressly agreed that any uncertainty or ambiguity existing herein shall not be construed against any party. The captions are inserted only for convenience and are not a part of this agreement or a limitation on the scope of the particular paragraph to which it refers.
17. SEVERABILITY. Should any provision of this contract be held to be void, invalid, or inoperative, such provision shall be modified to reflect the fullest enforceable intent of the parties, or if such modification is not possible, severed, and the remaining provisions of this contract shall not be affected and shall continue in full force and effect.
18. FORCE MAJEURE. Neither party shall be liable to the other for its failure to perform any of its obligations hereunder during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, interruptions in telecommunication services or Internet access, fire, flood, earthquake, war, embargo, strike, acts of God or the intervention of any governmental authority.
19. CONFIDENTIALITY. Each party acknowledges and agrees that any information or data it has acquired or will acquire from or about the other party, not otherwise properly in the public domain, was or will be received in confidence. Each party agrees not to divulge, communicate or disclose, except as may be required by law or for the performance of this Agreement, or use to the detriment of the other party or for the benefit of any other person or persons, or misuse in any way, any confidential information of the other party, including any scientific, technical, trade or business secrets of the other party and any scientific, technical, trade or business materials that are treated by the other party as confidential or proprietary, including, but not limited to, ideas, discoveries, inventions, developments and improvements belonging to the other party and confidential information obtained by or given to the other party about or belonging to third parties. If either party's confidential information is required to be disclosed pursuant to a requirement of a governmental authority, such confidential information may be disclosed by the other party pursuant to such requirement so long as the disclosing party gives the other party timely prior notice of such requirement and coordinates with the other party in an effort to limit the nature and scope of such required disclosure.
20. LIMITATION OF LIABILITY. DEALNEWS WILL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE DEALNEWS DEALCLICKS PROGRAM, EVEN IF DEALNEWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOSS OF DATA OR LOSS OR INTERRUPTION OF SERVICES OR COMMUNICATIONS. THE PROVISIONS OF THIS SECTION SURVIVE TERMINATION OR EXPIRATION OF THE AGREEMENT.
21. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, DEALNEWS EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE DEALCLICKS PROGRAM, THE LINKS, TRADEMARKS AND ANY OTHER SERVICE PROVIDED BY DEALNEWS HEREUNDER, AND ANY OTHER SERVICE, CONTENT, TOOLS OR RELATED DOCUMENTS OR MATERIALS (IN ELECTRONIC FORM OR OTHERWISE) PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, DEALNEWS EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF ANY DEALNEWS WEB SITE.
22. NOTICES. Any and all notices and other communications to either party hereunder shall be in writing and deemed delivered (i) upon receipt if by hand, email (electronic mail), overnight courier or fax (provided that in the event of a fax, concurrently therewith a copy is mailed in accordance with clause (ii) hereof) and (ii) three days after mailing by first class, certified mail, postage prepaid, return receipt requested (1) if to DealNews at PO Box 1567, Huntsville, AL 35806, attention: President (2) if to Client at the address set forth below on the signature page or to such other address for a party as shall be specified by like notice.
23. GOVERNING LAW. In the event of any legal proceeding to collect an amount owed under this Agreement, the prevailing party shall be entitled to recover its reasonable attorney fees, including but not limited to the reasonable attorney fees anticipated to be incurred in enforcing any judgment in such legal proceeding. Any legal proceeding shall be governed by and enforced in accordance with the laws of the state of Alabama. Jurisdiction and venue of any legal proceeding shall be in Madison County, Alabama.
APPENDIX A – FEES PAYMENTS AND CREDITS
This Appendix A supplements Section 3 of the Agreement on incorporated by reference. As described in Section 3, DealNews may amend the fees detailed in this Appendix A at any time.
Client agrees to pay, using a credit card, the price as advertised for the Dealnews Flat Fee product.
Dealnews may offer “Buy one Get One” or matching credits for the purchase of flat fee advertising. Any free credits given as part of a promotion are only valued at the value of the purchased item for which they are given and can only be used to purchase items of the same value. Prices of Dealnews advertising products will vary based on seasonality. A credit amount may be used for its value to purchase advertising products that differ from the advertising product that was originally purchased.