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Terms of Purchase.
These Terms and Conditions for Purchase of Services (these "Terms") govern the provision of Services by theADbuy.com, LLC ("theADbuy.com") pursuant to a client’s (the “Client’s”) advertising placement request submitted through <theadbuy.com> website (“Ad Placement Request”).
These Terms prevail over any of the Client’s general terms and conditions, regardless of whether or when the Client has submitted its Ad Placement Request, order, or such terms. Provision of Services to the Client does not constitute acceptance of any of the Client’s terms and conditions and does not serve to modify or amend these Terms.
By submitting an Ad Placement Request, Client hereby appoints theADbuy.com to perform the following services on behalf of the Client (collectively, the “Services”):
a) order the space, time, or other means to be used for the Client’s advertising from the publication specified in the Ad Placement Request (the “Publication”);
b) properly incorporate the message in mechanical or other form, and forward it with proper instructions for the fulfillment of the order; and
c) check and verify insertions, displays, or other means used, to such degree as is usually performed by advertising agencies and/or media buyers.
The Client will:
a) give theADbuy.com clear instructions, and ensure that all information and materials provided to theADbuy.com for use in providing the Services are accurate;
b) cooperate with theADbuy.com in all matters relating to the Services, and will ensure that its creative agencies and other communications suppliers cooperate as well;
c) respond promptly to any request by theADbuy.com to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for theADbuy.com to perform Services in accordance with the requirements of these Terms;
d) provide such Client materials, information, and/or Content as theADbuy.com may request to carry out the Services in a timely manner and ensure that such Client materials, information, and/or Content are complete and accurate in all material respects; and
e) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
If theADbuy.com’s performance of the Services is prevented or delayed by any act or omission of the Client or its agents, suppliers, representatives, subcontractors, consultants, or employees, theADbuy.com shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by the Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
In consideration for the Services and rights granted to the Client under these Terms, the Client shall pay (a) the rate proposed in the Ad Placement Request, or (b) another rate that’s otherwise agreed to pursuant to a Publication’s counteroffer (the “Rate”). The Client acknowledges that the Rate shall be inclusive of theADbuy.com’s costs and fees.
Once the Rate is fully negotiated and finalized with the Publication, theADbuy.com will send the Client an invoice for the Rate, which the Client shall pay upon receipt, in the manner set forth in the invoice.
The Client acknowledges that theADbuy.com (a) cannot finalize a reservation for ad placement with the Publication until it receives payment of the Rate, and (b) reserves the right to suspend performance of all Services until payment of the Rate is made in full.
Cancellation or changes to an Ad Placement Request must be made in writing and received by theADbuy.com on or before the Publication’s space reservation deadline. No changes or cancellations can be accepted after the Publication’s space reservation deadline.
Client agrees that theADbuy.com may refuse, reject, or cancel at any time, any Ad Placement Request, advertisement, insertion order, space reservation, or position commitment for any reason whatsoever, including if in its sole judgment it believes is an invasion of privacy, is degrading, libelous, unlawful, profane, obscene, pornographic, tends to ridicule, or embarrass, or is in bad taste, or which in its sole judgment is an infringement on a trademark, trade name or copyright belonging to others.
TheADbuy.com acknowledges that ownership of (including, without limitation, ownership of all Intellectual Property Rights in) any creative and/or advertising materials provided by the Client (the “Content”), shall remain vested in the Client.
Notwithstanding anything herein to the contrary, the Client’s ownership of the Content shall be limited by: (a) the rights of third parties whose materials or services are contained in the Content (“Third Party Materials”); and (b) the deliverables created or developed by theADbuy.com prior to providing the Services, independently of the Services, or in the course of providing the Services but provided they are capable of generic application, and in which the intellectual property rights are owned by theADbuy.com (collectively, “theADbuy.com Materials”).
The Client hereby grants to theADbuy.com a non-exclusive, royalty free, perpetual worldwide license to use, reproduce, distribute, transmit, and publicly display the Content.
All non-public, confidential or proprietary information of theADbuy.com, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by theADbuy.com to Customer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with the provision of the Services and these Terms is confidential, and shall not be disclosed or copied by Customer without the prior written consent of theADbuy.com.
Confidential Information does not include information that is:
a) in the public domain;
b) known to the Client at the time of disclosure; or
c) rightfully obtained by the Client on a non-confidential basis from a third party.
Customer agrees to use the Confidential Information only to make use of the Services, and acknowledges that theADbuy.com shall be entitled to injunctive relief for any violation of this Section.
The Client warrants that all information supplied to theADbuy.com before and during the Term is accurate and not in any way contrary to any applicable law.
The Client agrees to indemnify theADbuy.com from and against all claims, damages, loss, liabilities, costs, expenses, or judgment:
a) suffered by theADbuy.com which results from the use of any material including the Content provided to theADbuy.com by the Client (or any third party on the Client’s behalf) and incorporated into any deliverables or used generally to perform the Services; and
b) arising out of or in connection with any third-party demand, claim, action, or allegation that use of the the Content infringes the intellectual property rights or any other right of a third party, or is contrary to applicable law or any specific Publication requirement that is communicated to the Client.
TheADbuy.com makes no warranties (including the implied warranties of merchantability, fitness for a particular purpose and non-infringement), guaranties, representations, promises, statements, estimates, conditions or other inducements, expressed, implied, oral, written or otherwise except as expressly set forth herein. TheADbuy.com does not warrant or guaranty the profile or demographics of any media, including the Publication. TheADbuy.com does not guarantee to match colors, quality of paper or ink, match test or typography, printing, position, placement or order within the Publication. All orders are contingent upon theADbuy.com’s ability to procure necessary materials and upon delays caused by accidents, war, act of God, embargoes, or any other circumstances beyond its control. TheADbuy.com will make every effort to meet scheduled delivery and mailing dates, but makes no guarantee and accepts no liability for failure to meet said dates.
IN NO EVENT SHALL THEADBUY.COM BE LIABLE TO THE CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL THEADBUY.COM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THEADBUY.COM PURSUANT TO THE APPLICABLE AD PLACEMENT REQUEST.
These Terms will become effective and are fully executed when the Client checks the box on the Ad Placement Request acknowledging that he/she has read and agrees to these Terms (the “Effective Date”).
These Terms continue until the earlier of:
a) completion of the Services; or
b) TheADbuy.com’s provision of written notice of termination to the Client based upon the Client’s failure to comply with, or perform its obligations under, these Terms.
Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Client’s Representations, Indemnification, Confidentiality, Governing Law, and Survival.
These Terms and the rights of the parties hereunder shall be governed by and enforced in accordance with the laws of the State of Washington. All disputes between the parties shall be resolved by litigation exclusively in the state or federal courts located in the State of Washington.
Nothing contained in these Terms shall be construed as creating any partnership, joint venture, trust, or employment between the parties hereto. The parties intend that an independent contractor relationship will be created by these Terms. The Client is interested in the results of the work and the control of the work will lie solely with theADbuy.com.
The Client shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of theADbuy.com. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the Client of any of its obligations under these Terms.
These Terms shall constitute the entire agreement between the parties, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between Client and theADbuy.com with respect to the Services. Any prior understanding or representation of any kind preceding the date of this agreement shall not be binding upon either party except to the extent incorporated in this agreement. Any modification of this agreement or additional obligation assumed by either party in connection with the agreement shall be binding only if evidenced in writing signed by each party or an authorized representative of each party. All future ad placements, approved by Client shall be subject to the terms and conditions of this agreement unless otherwise stated in writing.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and sent to:
TheADbuy.com: info@theadbuy.com, and
The Client: the email set forth in the Ad Placement Request, or as the Client may otherwise designates in writing.
Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms, or invalidate or render unenforceable such term or provision in any other jurisdiction.
Amendment and Modification.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.