PLEASE READ THESE PUBLISHING TERMS & CONDITIONS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. This Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute.
Parties
This Agreement is by and between Publisher and Purchaser. “Publisher” or “we,” “us” or “our” means Discover Publications. “Purchaser,” “you” or “your” means the business, person or other legal entity shown as the Purchaser on the face of the Publishing Order, its owners and successors; By signing the front of this Publishing Order, such individual warrants and represents to the Publisher that he or she is authorized to, and thereby does, bind such entity, and that he or she fully guarantees the performance by such entity of Purchaser’s duties, obligations and payments under this Agreement. In the event that Purchaser shall have Publisher perform Work for the benefit of a third-party, such as an advertiser, Publisher shall owe no duty or obligation to any such third-party, it being expressly understood that Purchaser shall be solely responsible to and shall communicate with that third-party. Such third-party shall not be an intended beneficiary of this Agreement and Purchaser agrees to pay for any Work performed by Publisher for such third-party.
Personal Guarantee
By signature on the attached Publishing Order, it is attested the individual signing has authority to enter into this Agreement, has read and under- stood the Agreement and guarantees payment of the services rendered to Purchaser below and guarantees payment of any fees and/or costs associated with the Publishing Order, if applicable.
Definitions
“Advertising” means, individually and collectively, items specified on the Publishing Order for which a charge is assessed; “Artwork” means the Advertising, or any portion thereof, including but not limited to, text, graphics, illustrations, symbols, logos, and photographs to be published, displayed, distributed or disseminated pursuant to this Agreement; “Distribution Site” means each of Publisher’s distribution or fulfillment vendors; “Discounted Rate” means a lower charge for Advertising per Issue which is based on the number of Issues ordered by Purchaser. “Final Date For Changes” is the date so specified on the Publishing Order, or if no such date appears or if the Publishing Order is signed by Purchaser after such date, the then third (3rd) day after execution; “Issue” means any particular issue of the Product in which the Advertising appears; “Issue Commitment”: means the number of Issues elected by Purchaser on the front of the Publishing Order. “Issue Date” means the first day upon which the Advertising is initially fulfilled for the Initial Term and the Issue Date for any Renewal Term. “Product” means a printed paper, containing copy and features chosen by the Publisher within its sole discretion and the Proofs, which is mailed by the Publisher or its designees to certain USPS carrier routes, zip codes and the Purchaser Database by U.S. mail, third class bulk, postage prepaid and addressed to “The Family at” or “Resident” (but does not contain the resident’s name). “Proofs” are scaled-down previews of the front and back pages of the Product, exactly as they are to be printed, excluding the Table of Contents, and which are e-mailed in PDF format to Purchaser for approval. “Publishing Order” is this Agreement, which includes as its provisions the front side of this form and these Terms and Conditions (“TACs”), which may be transmitted to Publisher by Purchaser by mail, delivery service, facsimile or e-mail. All prior agreements, representations, statements, negotiations, warranties, specifications, acceptance criteria and undertakings whether oral or written are superseded by the language of the Publishing Order. “Purchaser Database” is a mailing list furnished by Purchaser to Publisher, in standard database format. “Renew/Cancel Date” means the date by which Publisher must receive written notice of Purchaser’s decision to either review of cancel the Publishing Order. “Work” means the specific service(s) to be performed by Publisher for the production and delivery of the Product for the Purchaser.
Publishing Order Acceptance
The Publishing Order, when first submitted to Publisher by the Purchaser along with the down payment, shall constitute an offer proposing the provisions, terms and conditions of this form as completed and it shall remain open for acceptance by Publisher for a period of 60 business days after receipt by Publisher of the signed Publishing Order and payment. Publisher may accept Purchaser’s offer at any time within that period without providing notice of same to Purchaser. Ordering Work from Publisher shall constitute acknowledgment of the Publishing Order and these Terms and Conditions, subject to acceptance by Publisher. WHEN ACCEPTED, THE PUBLISHING ORDER AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL CONSTITUTE AN AGREEMENT (the “Agreement”) BETWEEN PUBLISHER AND PURCHASER EFFECTIVE UPON SUCH ACCEPTANCE. IF PURCHASER SHOULD SUBMIT ITS FORM OF PUBLISHING ORDER OR CONFIRMATION OR PROPOSE ANY OTHER TERM AND CONDITION THAT IS IN CONFLICT OR AT VARIANCE WITH OR IN ADDITION TO THOSE IN THIS PUBLISHING ORDER, THEN ANY SUCH CONFLICTING, VARYING OR ADDITIONAL TERM AND CONDITION SHALL NOT FORM OR BE APART OF THIS AGREEMENT, UNLESS SPECIFICALLY ACCEPTED IN A WRITING REFERRING TO THE SAME AND WHICH IS SIGNED BY AN AUTHORIZED REPRESENTATIVE OF PUBLISHER. THIS RESTRICTION SHALL HAVE EFFECT WHETHER PUBLISHER RECEIVES PURCHASER’S PUBLISHING ORDER OR OFFER PRIOR TO, FOLLOWING, OR CONTEMPORANEOUS WITH PURCHASER’S RECEIPT OF PUBLISHER’S FORM OF PUBLISHING ORDER. THE TERMS OF THIS AGREEMENT AS DESCRIBED ABOVE SHALL SET FORTH THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND IT SHALL SUPERCEDE ALL PRIOR AGREEMENTS OR UNDERSTANDINGS, VERBAL AND/OR WRITTEN BETWEEN PUBLISHER AND PURCHASER. AGREEMENT, WORK AND PRODUCT: This Publishing Order, when accepted by Publisher, shall constitute an agreement by and between Publisher and Purchaser, whereby Publisher agrees to perform the Work and deliver the Product and Purchaser agrees to make the payments and deliver the other performances required of Purchaser in the Agreement. It is the sole responsibility of the Purchaser to “proof-read” and check for errors and omissions and the accuracy and legality of the Proofs, both as to the Purchaser’s personal/business information and other content (including, but not limited to, matters referred to in the “INDEMNITY” Section and claims and actions for libel, breach of governmental licensing requirements, infringement of intellectual property rights and unfair or deceptive advertising, competition and trade practices which may be claimed or brought against the Publisher and/or the Purchaser) and as to any and all advertising from outside or third-party sources which is included at the request of the Purchaser. Except for those matters which are the responsibility of the Purchaser as provided herein, the Publisher shall retain complete and absolute editorial control over and ownership of the Product and its content, including, but not limited to, the right to reject any Purchaser proposed content that Publisher deems, in its sole and absolute discretion, to be offensive, inflammatory or in poor business or social taste, the right to require Purchaser to include disclosures or disclaimers that may clarify, or caution Product recipients about, the content of the Proofs, the right to copy- right the Product and its content, derivatives and compilations, and the right to use copies of Purchaser’s Product, produced at Publisher’s expense, as samples to solicit print sales from other businesses or individuals, whether or not they are competitors of Purchaser. At all times and without notice, this Agreement shall be subject to whatever licensing agreements the Publisher has or may choose to enter into with authors or syndicates providing copy, artwork and features for inclusion in the Product and the same, when executed, shall be deemed to unilaterally amend this Agreement to the extent with which they affect it. Proofs shall be sent by e-mail transmission for Purchaser’s approval and any disapproval by the Purchaser must be returned to the Publisher within 48 hours of Publisher’s transmission. For all subsequent issues, the approval process shall be the same. If Purchaser disapproves the Proofs and changes must be made, Publisher is NOT required to furnish Purchaser with Proofs containing such changes. If Purchaser chooses to include historical sales of homes in Purchaser’s area (information to be provided to Publisher by Purchaser), Purchaser warrants that such publication does not violate any federal, state or local law, ordinance or regulation, misrepresent any fact or otherwise mislead any Product recipient. In the event Purchaser fails to signify his, her or its disapproval of the Proofs by signing and returning the same within 48 hours of receiving the Proofs by e-mail transmission, such silence shall be deemed to authorize the Publisher to print and mail the Product with whatever errors or omissions said Proof may contain, and the Purchaser accepts full and sole responsibility and liability for said errors and omissions.
Duration of the Agreement
(a) Initial Term. This Agreement is effective when executed by Purchaser (either in writing or by electronic signature or when Purchaser voice verifies Purchaser’s oral request for Advertising); provided, however, that effectiveness remains subject to acceptance / rejection by the Publisher as described herein. Unless otherwise specified, the initial term of this Agreement (the “Initial Term”) shall be for the time period selected by Purchaser on the front of this Publishing Order. The Product shall be published periodically, with the timing of each issue as agreed on the front of this form. Purchaser shall be deemed to have ordered the next issue, unless this Agreement is terminated by either party prior to the printing of the next issue; provide, however, should the Purchaser terminate this Agreement after Publisher has commenced Work on the next issue, Publisher shall have the right to bill Purchaser for such work as provided below. Publisher shall have such other rights of termination as provided herein. Purchaser’s obligations to pay and indemnify Publisher shall indefinitely survive any termination. (b) Cancellation / Renewal Terms. (i) Purchaser may cancel this Agreement, in whole or in party, only by written notice signed by an authorized representative of Purchaser sent by “U.S. Certified Mail” to Publisher at Publisher’s address on the Publishing Order and mailed return receipt to the attention of “Discover Publications, ATTN: Cancellation Manager.” (ii) For the Initial Term, Purchaser must deliver notice of cancellation to Publisher on or before the Final Date for Changes specified on the Publishing Order. (iii) If the Publishing Order is executed or authorized after the Final Date for Changes, or if no Final Date for Changes is specified on the Publishing Order, Purchaser must deliver notice of cancellation to Publisher within three (3) days of execution / authorization. (iv) If Purchaser wishes to cancel this Agreement after the Final Date for Changes and prior to completion of the Issue Commitment specified in the Publishing Order, there will be an early termination fee of the difference in frequency rate between the quantity contracted for and the quantity fulfilled, applied to the number of copies fulfilled. The early termination fee is not a penalty, but rather a charge to compensate us for your failure to satisfy the Publishing Order on which your rate frequency discount was based. In the event of early termination, Publisher has permission from Purchaser to charge termination fees and any outstanding balance due to Publisher with credit card or checking account information on file. (iv) Publisher may cancel and/or reject this Agreement, in whole or in part, at any time and for any reason or no reason as determined by Publisher in its sole and absolute discretion, and in such event, this Agreement will remain effective as to any Advertising not canceled or rejected. Voluntary suspension of billing activity by Publisher with respect to all or any portion of a Publishing Order shall not, absent, definitive documentation to the contrary, constitute cancellation or rejection of this Agreement and Publisher shall retain the right to enforce the remainder of any applicable Initial Term and to resume billing when and as it deems appropriate in connection therewith.
Agreement Price, Charges, Optional Charges And Payments
Notwithstanding the foregoing, unless otherwise specified by Publisher, Purchaser shall pay the charges specified in the Publishing Order (plus any applicable taxes) at the times specified on Publisher’s invoices and automatic installment authorization agreement. Publisher typically bills on a monthly basis, however, Publisher may require payment on other than a monthly basis for credit or other reasons. Where, for whatever reason, a particular billing period is not a whole month, Publisher may adjust the charges specified in the Publishing Order to account for the shorter period. Payments are due on the due date specified on the invoice or, if no payment date is specified, then thirty (30) days after the date of the invoice. Purchaser 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 Publisher’s net income, as applicable. Upon Purchaser’s failure to pay any invoiced amount when due, Publisher may accelerate the billing and collection of all remaining charges for all Advertising, without further notice to Purchaser, including charges that are separately billed and not past due. Purchaser will be liable to Publisher for any returned check fees and any other fees allowed by law, and agrees to pay attorneys’ fees and costs that Publisher or its agents incur in collecting any unpaid amounts. Publisher may also remove any Advertising, in whole or in part and whether covered by this Agreement of any other Agreement Purchaser may have with Publisher or any of its affiliates, and suspend Publisher’s services hereunder if payment is not received by the due day. If installment plan is not elected, Purchaser agrees to pay Publisher in full immediately upon receipt of Publisher’s statement and prior to the printing and delivery of that issue. Once Purchaser’s payment is received, Publisher shall have a reasonable time to cause that issue of Product to be printed. If payment is not timely received, Publisher shall not be obligated to print the Product and Publisher, at its option, may bill the Purchaser for Publisher’s Work thentofore performed for Purchaser on the Product, at the rate of $125.00/hour, plus expenses. Publisher shall bill Purchaser for such charges and the same shall be payable in full upon receipt of that statement. Furthermore, Publisher shall have the right to elect to immediately terminate this Agreement, provided that Purchaser’s obligation to make any and all payments hereunder, including interest charges, shall survive said termination. Purchaser shall be charged interest at the rate of 1 1/2% per month on any past due amounts. Purchaser agrees to pay Publisher’s cost of collection of all amounts due and unpaid after sixty (60) days, including court costs and attorney’s fees. Publisher reserves the right to require partial or full payment in advance as a condition of publication or fulfillment or to charge Purchaser a reasonable fee for requests that exceed our customary services, including, for example, excessive content changes, protracted design development or premise visits. The reasonable fee shall be billed at the rate of $125/hour. Purchaser may furnish information to Publisher for historical data regarding homes sold in Purchaser’s area at no additional charge, subject to conditions stated herein. Such additional charges shall be a part of the agreement price and, if the same is unpaid, shall also be included in the optional charges described above. Postal rate increases after the acceptance of this Publishing Order shall be calculated as additional costs and added to the agreement price. In the event such increase exceeds 5% of the thentofore calculated agreement price, Purchaser shall have the option to have the Publisher adjust the frequency and/or quantity of the Product to reduce the payment due to the original agreement price. Publisher charges a $38.00 fee for returned (NSF) checks. Purchasers that issue an NSF check will be required to submit future payments with a certified check or money order. A $38.00 chargeback for each credit card chargeback received by Publisher.
Method of Payment
Payments are to be made in U.S. dollars and must be drawn from a U.S. bank. Publisher accepts: Credit Cards: Visa, Mastercard, American Express, and Discover Card; Check; Electronic Check Transfer / ACH Debit; PayPal; or Money Order. If Purchaser provides Publisher with credit card information, Purchaser expresses one-time authorization for Publisher to charge credit or debit card for charges that apply to the account. All credit card, bank, and financial account information provided to Publisher for recurring use will be stored securely and in compliance with all applicable laws and regulations. All electronic payments Purchaser initiates online are initiated for a one-time purchase only, and Publisher does not store such information. If Purchaser agrees to Auto-Pay, recurring charges will be posted to credit card or bank account on file until such time that Purchaser cancels Auto-Pay. Purchaser is responsible for directly updating, or notifying Publisher, of any changes to credit card or bank account (including, but not limited to card number, account number, expiration date, billing address, or card status).
Billing, Price and Policy Changes
Publisher’s policies and prices are subject to change without notice, unless an Agreement, in-writing acknowledgment, or Pricing Commitment Letter has been issued to the Purchaser. Any price changes become effective in the next billing cycle.
Quantities of Product
The quantities of the Product to be provided by Publisher under this Agreement shall be determined using recent United States Postal Service counts of deliverable addresses within postal carrier routes and/or defined zip codes reserved by Purchaser and the addresses in the Purchaser Database. Postal certifications are updated quarterly and Purchaser will be billed according to the number of pieces mailed as the quantities fluctuate, as according to the USPS and database counts. It shall be the Purchaser’s responsibility to obtain and remove any addresses contained in the Purchaser’s Database that are duplicated in postal carrier routes and zip codes reserved by the Purchaser. It is solely the Purchaser’s responsibility to provide Publisher with the names and addresses of any and all persons who have registered under any federal, state or local law, as desiring not to receive commercial solicitations through the mail, in Purchaser’s reserved carrier routes, zip codes and Purchaser’s Database. Purchaser shall indemnify and hold harmless Publisher for any cost, expense, liability, fine or charge incurred by Publisher for any violation of such law.
Delivery
Publisher shall mail the Purchaser’s Product using Publisher’s USPS Bulk Mailing Permit within a reasonable period of time after the has been printed. Publisher shall cause the Purchaser’s Product to be delivered to the USPS and pay the appropriate postage. The Publisher does not guarantee delivery of the Product by the USPS to addressees. Any claims for failure to deliver shall be made by Purchaser directly to the USPS. Purchaser shall not attempt to mail personal-use copies of the Product without affixing at Purchaser’s expense proper postage and covering-up the Publisher’s postal indicia printed on the Product.
Exclusivity
Publisher provides exclusive territories to each Purchaser mailing a Publication, Newsletter, or other Custom Publishing Product by Carrier Route Saturation (commonly known as Bulk Mail or Farming), so that homes do not receive Products from multiple purchasers. Purchaser agrees to abide by Territory Exclusivity regarding neighboring or competing purchasers which are entitles to Exclusivity in other carrier routes or zip codes. CARRIER ROUTE EXCLUSIVITY: From the time a Purchaser authorizes printing of a Publication, Newsletter, or other Custom Publishing Product and for a period of 60 days thereafter, Publisher shall not intentionally sell Product to be mailed, or distributed by any method, to the specific carrier route territories in use by the Purchaser to any other purchaser, provided that it shall not be deemed a breach of this provision should not more than 15% of the addresses receiving Publisher’s newsprint in that exclusive territory occur as a result of some other purchaser’s personal database list or are due to another purchaser independently mailing personal-use copies to such addresses. Should Purchaser require exclusivity for periods in excess of 60 days, special exception may be made at the discretion of the Publisher, and such an exception must be provided to the Purchaser in writing to be considered valid. ZIP CODE EXCLUSIVITY: Additionally, so long as Purchaser continues to mail the Publication, Newsletter, or other Custom Publishing Product to a minimum of 1/3 of the carrier routes in any zip code, Publisher shall not intentionally sell Product to be mailed, or distributed by any method, to any carrier routes in that entire zip code to any other party, provided that it shall not be deemed a breach of this provision should not more than 15% of the addresses receiving Publisher’s newsprint in that exclusive territory occur as a result of some other purchaser’s personal database list or are due to another purchaser independently mailing personal-use copies to such addresses. PURCHASER’S VIOLATION OF EXCLUSIVITY: Should Purchaser purchase personal-use copies and mail, or distribute by any method, the same into the exclusive territory of any of Publisher’s other purchasers, Purchaser agrees to stop such mailings should Publisher so request and this obligation shall survive the termination of this Agreement.
Indemnity
Purchaser warrants and represents to Publisher that he or she, and/or it is fully licensed and in good standing to perform all the services which are offered in the Proofs and that Purchaser is entitled to use any and all service marks, trademarks, photographs, names, copywriting, and other items or artwork or terms of art or trade, as appear in the Product and are taken from the Proofs. Furthermore, Purchaser warrants that to the best of he, she and/or its knowledge that all content of the Proofs, including historical information regarding homes sold in Purchaser’s area are in compliance with all local, state, and federal laws, regulations and ordinances and are not otherwise inaccurate or misleading. Purchaser shall indemnify and hold harmless the Publisher as to all costs, damages, attorney fees, fines, and penalties, whether civil or criminal, arising from governmental action or claims and suits by third parties, arising therefrom or from the content of the Proofs.
Purchaser’s General Warranties And Obligations, Including Indemnification
(a) Purchaser expressly represents and warrants: (i) that Purchaser is authorized to advertise and display the requested business, product or service, (ii) that Purchaser is a business, not a consumer, (iii) that the content of any advertisement is truthful and not misleading and complies with all applicable laws and licensing requirements, (iv) that Purchaser itself is in compliance with all laws and licensing requirements relating in any manner to the goods or services displayed or to Purchaser’s advertisement, (v) that Purchaser is authorized to be and is engaged in the business of providing the products and/or services corresponding with the content of the advertisement, (vi) Purchaser warrants that Purchaser will honor any promise, offer or other statement set forth in the Advertising during the life of the Advertising, or until an expiration date stated in the Advertising, whichever occurs first, and (vii) Purchaser will provide Publisher with all information necessary to publish the Advertising and will do so in a timely manner. As to advertising created by Publisher for Purchaser, Purchaser is responsible to review said advertising and confirm that it is accurate, that Purchaser has the right to use and publish any name, address, trade name, trademark, service mark, picture, likeness, logo, reproduction, endorsement, copyrighted or copyrightable item or other content as included in such advertising. Without limiting any of Publisher’s other rights and remedies, Purchaser agrees to notify Publisher immediately in writing at any time that Purchaser discovers or suspects that any of these representations is not true and correct in all respects. Purchaser agrees to indemnify and hold harmless Publisher, its parent(s), affiliates and distribution sites, and their directors, officers, employees and agents against all claims, actions, losses, expenses, damages, costs and/or liabilities, including attorney fees and other expenses incurred in the defense of any claims, arising from this contract, including without limitation breaches of any representation and warranty made herein, and/or Purchaser ’s advertising and/or requests for advertising services, 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, claims that the advertising infringes on a third party’s trademarks, copyrights or other intellectual property rights, contains misrepresentations, as well as any claims that the advertising does not otherwise comply with any applicable legal requirement or obligation, whether directly applicable to Purchaser or otherwise. Purchaser’s obligations under this section shall survive the termination or cancellation of this contract.
Limitation Of Publisher’s Warranties And Liability
Other than Publisher’s indemnity for the use of the content of the Product not contained in the Proofs,THE PRODUCT AND ITS CONTENT ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND. THERE ARE NO INDEMNITIES OR WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL PUBLISHER BE LIABLE FOR ANY TIME, PRODUCTION, SPECIAL, LOST PROFIT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS OF ANY KIND OR NATURE WHATSOEVER WHETHER FOR BREACH OF WARRANTY (EXPRESS OR IMPLIED), BASED ON NEGLIGENCE, BREACH OF CONTRACT, STRICT LIABILITY, OR OTHERWISE.
Limitation On Publisher’s Warranty On Information
Further, Publisher does not warrant the accuracy or completeness of the information, text, graphics or other items contained within the Product, the Proofs or any other materials provided to Purchaser or the Product recipients, including maps for territories. In particular, Purchaser should be aware that this information may be incomplete, may contain errors or may have become out-of-date and it is the responsibility of the Purchaser to validate any of the same.
Limitation Of Purchaser’s Remedies And Damages
Purchaser’s sole and exclusive remedy for any breach of this Agreement by Publisher and Publisher’s limit of liability for any and all losses or damages resulting from material errors or omissions in the Product (errors or omissions that are more than minor variations from a Proof, i.e.,shading or color or minor typographical errors, and which would be considered to be unacceptable to a level according to generally accepted standards of the printing trade and such errors and omissions have not been assumed by Purchaser as provided above), from any failure to perform the Work and produce and deliver the Product, or from any other cause, including the accuracy and completeness of materials, shall be to accept one of the following options selected by and offered by Publisher as Publisher’s cure of the breach or condition: 1) at its own expense, the Publisher shall correct the Proof and submit it for approval to the Purchaser and cause the corrected Product to be mailed to the same carrier routes in the same volume and quantity as the faulty Product, and thereby relieving the Purchaser of the obligation to pay for the next issue due under this Agreement, but also denying the Purchaser some or all of the benefits of one of the other subsequent issues of Product due under this Agreement; or 2) the Publisher shall perform all its regular initial issue Work for the Purchaser, at the Publisher’s own expense, for one issue of Product immediately after the termination of this Agreement. In no event shall Purchaser be entitled to any refund of amounts paid or monetary damages; it being expressly intended and agreed by the parties hereto that Purchaser’s remedy is to have such breach remedied by a curing performance by Publisher. If the Purchaser does not timely accept one of the foregoing cures offered by Publisher, then Purchaser shall have no right to any other remedy. Publisher shall have no liability for ANY TIME, PRODUCTION, SPECIAL, PROFIT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS WHATSOEVER. IN NO EVENT SHALL PUBLISHER BE LIABLE FOR ANY LOSS, DAMAGE OR DELAY DUE TO TRANSPORTATION, ACCIDENTS, FIRE, STRIKE, CIVIL OR MILITARY AUTHORITY, INSURRECTION, GOVERNMENTAL ACTION OR ANY CAUSES BEYOND PUBLISHER’S REASONABLE AND RESPONSIBLE CONTROL.
Intellectual Property
(a) As to any Artwork or Advertising that Publisher (or another party on Publisher’s behalf) creates for Purchaser, whether in whole or in part, and any derivative work that Publisher creates from Purchaser’s content, Purchaser acknowledges that Publisher is an author and assigns to Publisher all rights, title and interest in and to any independently copyrightable contribution Purchaser might have made to the advertising. Publisher may therefore use, publish, reproduce, distribute, display publicly, promote, perform, resize, rearrange, modify and create derivative works of Publisher’s Artwork and the Advertising in which it is used, for publication/fulfillment in any of the Issues or Advertising or service, whether in print, Internet, electronic or other format, in perpetuity. Purchaser further acknowledges that Publisher retains all rights, title and interest, including the copyright, in such Advertising and that neither Purchaser nor Publisher intends for such advertising to constitute a joint work. In addition, Publisher may sell, license or otherwise transfer an interest in Publisher’s Artwork without any accounting to Purchaser. To the extent that Purchaser claims any right, title or other interest in and to the copywritten Publisher’s Artwork or in the Advertising, Purchaser irrevocably assigns this interest to Publisher. (b) Purchaser warrants and represents that it has the right to use, publish, reproduce, distribute, display publicly, promote, perform, resize, rearrange, modify and create derivative works of any Artwork provided by Purchaser or on Purchaser’s behalf for publication/fulfillment in Advertising in any of the Issues, or in any other advertising or service in whatever format, now or in the future. Purchaser, for itself and any third party with an interest in such Artwork, grants Publisher a nonexclusive license, including the right to sub-licensee, to copy, distribute, create derivative works based upon, publicly display, publicly perform, reproduce, promote, perform, resize, rearrange, modify and otherwise use the Advertising, as well as any trademark, service mark, graphics, Artwork, text or other content Purchaser provides to Publisher in connection with this Agreement in any of the Directories, or in any other directory or advertising or service, in whatever format, now or in the future. Publisher has no obligation to notify Purchaser in connection with any use envisioned herein and upon termination of this Agreement, Publisher has no obligation to return or restore any works to Purchaser. (c) If Publisher receives notice that another person or entity contests Purchaser’s right to use or display a logo, name, trademark, service mark or other content including the Advertising, Publisher may terminate this Agreement in its entirety and/or reject, cancel, discontinue or suspend the Advertising, without liability, until such time as Purchaser has resolved the dispute with the other party to Publisher’s satisfaction. Suspension of this Agreement and/or Advertising shall not relieve Purchaser from the obligation to continue to make payments as invoiced and a rejection, cancellation or discontinuance of a portion of the Agreement or Advertising shall not relieve Purchaser of the obligation to continue payment with respect to the remainder hereof. (d) At any time that a Purchaser has reason to believe that its right and authority to use any advertising content is terminated or otherwise changes or any proceeding contesting that right is threatened or begun, Purchaser will immediately provide detailed written notice to Publisher, to the address on the Publishing Order. Receipt of such notice shall not, by itself, create any obligation on the part of Publisher and shall not limit or affect any of Publisher’s other rights or remedies. (e) Purchaser is solely responsible for the protection and/or enforcement of any copyrights, trademarks, service marks, trade names and other intellectual property owned or claimed, wholly or in part, by Purchaser or which Purchaser is authorized to use or display. (f) Publisher shall have the irrevocable right to use the Advertising in any materials advertising, promoting and/or publicizing Publisher’s services. Purchaser, however, may not reproduce the Advertising for any purpose without the express written permission of Publisher. (g) Except as otherwise provided herein, Publisher owns the exclusive copyright in and to each Directory and all other intellectual property in or on each Directory. (h) PURCHASER’S OBLIGATIONS UNDER THIS SECTION 17 SHALL SURVIVE THE TERMINATION OR CANCELLATION OF THIS CONTRACT.
Miscellaneous Provisions
Nothing herein shall be deemed to prohibit Publisher from selling Product to any person or organization that may be a competitor of the Purchaser. The reasonableness of any time for performance required by the Publisher shall be measured by the schedule provided by Publisher to Purchaser as it may be extended for intervening circumstances. If Purchaser shall file a petition in bankruptcy or a receiver be appointed due to its insolvency, Publisher may without prejudice to any other right of remedy terminate this Agreement and seek payment of its charges or the agreement price. This Agreement represents the entire agreement between the parties. All prior agreements, representations, statements, negotiations, warranties, specifications, acceptance criteria and undertakings whether oral or written are superseded hereby. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio and the parties hereto agree to submit themselves to the jurisdiction of the Courts of Franklin County, Ohio. Publisher may assign this Agreement or any part of its obligations hereunder to any third-party without the prior written consent of Purchaser. Purchaser shall not assign the Agreement or Purchaser’s obligations hereunder to any third-party without the prior written consent of Publisher. The Purchaser’s issuance and Publisher’s acceptance of this Publishing Order constitute and give effect to all of the terms and conditions contained herein.