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1.) Introduction
1.1The terms are incorporated into each agreement entered into between the
online publisher and the customer whether or not the advertising order form
or any other document which the customer signs makes reference to these
terms.
1.2 In this contract the following expressions have the following respective
meanings unless the context otherwise requires:
"Online publisher" means Hamilton & Associates
"Advertiser" means the person or company identified on the order form.
"Insertion order" means advertising order form.
"Website" means the particular website as detailed on the insertion order.
2) Terms of payment:
Payments can be made by PayPal or by invoice.
Advertisers paying by invoice will be invoiced prior to the first day of the
contract period set forth on the insertion order. Payment shall be made in
full to the online publisher prior to the "live" date of the advertiser's
program, as specified in the insertion order. All payments to the online
publisher hereunder shall be made in U.S. dollars. In the event payment is
by invoice amounts paid after the due date shall bear interest at the rate
of 8% per annum from the date when payment should have been paid until the
date of actual payment, whether before or after judgment. In the event of
any failure by the advertiser to make payment, the advertiser will be
responsible for all expenses (including legal fees) incurred by the online
publisher in collecting such amounts. In the event of late payment the
online publisher reserves the right to suspend the advertisers information
posted on the website. In this event the online publisher may post an
"account suspended" notice in place of any company information supplied.
3) Acceptance of advertising is subject to space availability upon receipt
of signed contract or insertion order by the online publisher.
3.1 Receipt of a completed Standing Order Mandate will be considered as
acceptance of the order and the terms & conditions of the contract.
3.2 Receipt of email confirmation of an order will be considered as
acceptance of terms & conditions of the contract.
4) Advertisers Representations:
The advertiser warrants and represents to the online publisher that:
(1) it has the right to publish the contents of the advertisement, without
infringement of any rights of any third party including, without limitation,
intellectual property rights;
(2) it has complied with the codes of practice issued by the Advertising
Standards Authority in respect of electronic and on-line advertising and all
other relevant industry codes of practice;
(3) it will be fully responsible for the terms (including, without
limitation, product description, price and compliance with all applicable
laws and regulations) of any contract for the sale of goods or services to
customers who have seen the advert displayed by the online publisher.
The advertiser agrees to indemnify the online publisher forthwith on demand
and hold the online publisher harmless against any and all expenses, damages
and losses of any kind (including reasonable legal fees and costs) incurred
by the online publisher in connection with any claims, actual or threatened,
of any kind (including, without limitation, breach of contract, any claim of
trademark or copyright infringement, libel, defamation, breach of
confidentiality, false or misleading advertising or sales practices) arising
from the advertisement and/or any material of the advertiser to which users
can link through the advertisement and any other contract entered into for
the purchase of the advertised goods or services..
The advertiser will defend or settle at its own expense any action or other
proceedings brought against the online publisher that relates to the
advertisement and/or any material of the advertiser to which users can link
through the advertisement. The online publisher shall notify the advertiser
promptly of any such claim and shall permit the advertiser to assume and
control the defense of such action with Counsel chosen by the advertiser
(who shall be reasonably acceptable to the online publisher) and shall not
enter into any settlement or compromise of any such claim without the
advertiser's prior written consent. The advertiser shall pay any and all
proper costs, damages and expenses (including but not limited to reasonable
legal fees and costs) awarded against or incurred by the online publisher in
any such action or proceedings.
5.1) The online publisher reserves the right to re-design parts of or the
entire website as detailed in the insertion order and to re-position
advertising and sponsorship accordingly without prior notice.
5.2) The practice of deep linking may be necessary, thus enabling visitors
to by-pass your home page to visit specific areas of your website directly.
5.3) Optimized web pages containing your company name and information may be
submitted to search engines at the expense of the online publisher.
5.4) Positioning of advertisements is at the sole discretion of the online
publisher except where a request for a specific preferred position is
acknowledged by the online publisher in writing. Material must be received
by the agreed date, otherwise position may be lost, reduced or, in the case
of directory listings or fixed position advertisements, the insertion term
may be reduced.
6) The online publisher may create an advertisement on behalf of the
advertiser if material is not received by the agreed deadline.
7) Cancellation Policy: Any campaign can be cancelled without charge up to
30 days before the scheduled start date of the campaign. Non-banner
advertisements, company profiles and directory listings (where available)
can be cancelled without charge up to 30 days before the scheduled start of
the campaign. Cancellation damages of 50% of the advertising contract amount
will be due and payable to the online publisher by the advertiser if
campaigns are cancelled by the advertiser less than 30 days before the
scheduled start date of the campaign. After a campaign has started all
advertisements must run their contracted duration as per the insertion order
form.
8) All contents of advertisements are subject to online publisher's
approval. The online publisher reserves the right to reject or cancel any
advertisement, insertion order, space reservation or position commitment at
any time, or remove any advertisement from any website page controlled by
the online publisher, or reject any URL link embodied within any
advertisement.
9.1) The online publisher will notify the advertiser by email that their
advertisement has been added to the website.
9.2) The agreed duration will begin from notification by the online
publisher.
9.3) The advertiser must notify the online publisher as soon as is
reasonable by either email or fax of any inaccuracy or changes that need to
be made.
9.4) The content of all ads incorporating data provided by a third party is
not subject to the advertiser's prior approval but no warranty is given by
the online publisher with relation to the accuracy of such advertisements.
The online publisher does not undertake to review the contents of any
advertisements and any such review of, and approval by, the online publisher
shall not be deemed to constitute an acceptance by the online publisher that
such advertisement is provided in accordance with the terms of the
Agreement, nor shall it constitute a waiver of the online publisher's rights
hereunder. The online publisher makes no warranty, express or implied, as to
the accuracy of any advert. In the event that any advert is inaccurate, the
advertiser's sole remedy is for the online publisher to remedy such
inaccuracy within 2 working days of it being notified of the inaccuracy by
the advertiser.
10) All insertion orders are accepted subject to provisions of the current
rate card. Rates are subject to change upon notice from the publisher. In
the event of a rate increase during the period of the insertion order, the
advertiser will have the option to cancel the remaining period of the
insertion order with one month's notice or as of the date of the rate
increase, whichever period is the shorter, without penalty or continue the
order at the revised rate. Page impression based campaigns are monitored and
invoiced according to figures by the online publisher.
11) Limitation of Liability The online publisher will not be liable, in
contract, tort (including, without limitation, negligence), pre-contract or
other representations (other than fraudulent or negligent
misrepresentations) or otherwise out of or in connection with these terms
and conditions for:
any economic losses (including without limitation loss of revenues, profits,
contracts, business or anticipated savings); or any loss of goodwill or
reputation; or any special or indirect or consequential losses;
In any case whether or not such losses were within the contemplation of
either party at the date on which the event giving rise to the loss
occurred, suffered or incurred by a party arising out of or in connection
with the provisions of any matter under these terms and conditions. In
particular, and without limitation, the advertiser acknowledges that the
online publisher will not be liable for such losses whether arising from a
failure to publish an advertisement, or from the inaccuracy of any data
contained in any advertisements (whether such inaccuracy arises from any
action, or failure to act, of the online publisher, the advertiser or a
third party).
Nothing in these terms and conditions shall exclude or limit the online
publisher's liability for death or personal injury resulting from its
negligence or that of its servants, agents or employees.
Subject to the above, the liability of the online publisher in contract,
tort, negligence, pre-contract or other representations or otherwise arising
out of or in connection with these terms and conditions or the performance
or observance of its obligations under these terms and conditions, and every
applicable part of them shall be limited to the amendment of any inaccurate
data in accordance with Section 9 above or in the event that the online
publisher fails to electronically publish an advertisement, the advertiser's
sole remedy and the online publisher's entire liability to the advertiser
shall be limited at the online publisher's option to either a refund of the
advertising fee or relevant portion thereof, or placement of the
advertisement at a later time in a comparable position.
The advertiser acknowledges that any website on which an advert is displayed
is provided on an "as is" and "as available" basis without any
representation or endorsement. The online publisher makes no warranties of
any kind, whether express or implied, in relation to such website, including
but not limited to, implied warranties of satisfactory quality, fitness for
a particular purpose, non-infringement, compatibility, security, accuracy,
condition or completeness, or any implied warranty arising from course of
dealing or usage or trade or that the website will meet any requirements or
will be uninterrupted, timely, secure or error-free, that defects will be
corrected, or that the website or the server that makes it available are
free of viruses or bugs or are fully functional, accurate, or reliable.
12) The online publisher shall have the right to hold the advertiser or its
agent liable for such monies as are due and payable to online publisher for
advertising which the advertiser or its agent ordered and which advertising
was published and displayed.
13) No conditions other than those set forth in the rate card shall be
binding on the online publisher unless specifically agreed to in writing by
the online publisher.
14) The online publisher is not liable for delays in delivery and/or
non-delivery in the event of any situation beyond the control of the online
publisher.
15) No conditions other than those set forth in the insertion order or this
shall be binding unless expressly agreed to in writing. In the event of any
inconsistency between the insertion order and this Agreement, this Agreement
shall prevail.
16) Miscellaneous
These terms and conditions (as amended from time to time) together with any
document expressly referred to in any of the terms, contains the entire
agreement between the parties relating to the subject matter covered and
supersede any previous agreements, arrangements, undertakings or proposals,
written or verbal, between the parties in relation to such matters. No
verbal explanation or verbal information given by any party shall alter the
interpretation of these terms and conditions. Each party confirms that, in
agreeing to these terms and conditions, it has not relied on any
representation save insofar as the same has expressly been made a
representation in these terms and conditions and agrees that it shall have
no remedy in respect of any misrepresentation which has not become a term of
these terms and conditions save that the agreement of each party contained
in this.
The invalidity, illegality or unenforceability of any provision of these
terms and conditions shall not affect or impact the continuation in force of
the remainder of these terms and conditions.
Nothing in these terms and conditions shall be construed as creating a
partnership or joint venture of any kind between the parties or as
constituting either party as the agent of the other party for any purpose
whatsoever and neither party shall have the authority or power to bind the
other party or to contract in the name of or create a liability against the
other party in any way or for any purpose.
These terms and conditions shall be governed by and construed in accordance
with U.S law and the parties hereby submit to the non-exclusive jurisdiction
of the U.S. courts in respect of any dispute or matter
arising out of or connected with these terms and conditions.
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