These Advertising Campaign Terms (“Terms”) are entered into by the customer accepting these Terms electronically (“Advertiser”) and Beach Gremlins Networks Inc., DBA BarLink Online (“BarLink”). These Terms govern Advertisers participation in the BarLink Online advertising program. These Terms are collectively referred to as the “Agreement”.
This Agreement outlines the Terms under which Advertiser will purchase online advertising space (“Slots”) to display the advertising material (“Banner”) which will appear on-screen within a web forum board (“Board”) at any given BarLink merchant location (“Location”). BarLink reserves the right to modify the terms of this Agreement from time to time.
BarLink and Advertiser hereby agree and acknowledge:
1. Banner Content: Advertiser is solely responsible for (1.) all Banner content, ad information and ad URLs (collectively “Content”), whether generated by or for Advertiser; (2) any web sites, services and landing pages to which Content links or directs BarLink site users; (3) any advertised services and/or products (collectively “Product”) represented by Banner Content. BarLink reserves the right to deny approval and/or use of any Content or association with Advertiser’s Product if Content or Product is deemed, by BarLink, (a.) to be “professionally inappropriate”; (b.) to have not met the Terms of this Agreement; or (c.) to be a potential conflict of interest or in any other way damaging, in BarLink’s or Location’s opinion, to the business operation of either BarLink or the Location. Advertiser must be legally able to sell the Product represented by Banner Content; any described terms of sale may not conflict with this Agreement, or the BarLink Privacy Policy or Terms of Use Agreement, and any such conflicting terms in Advertiser’s Content shall be deemed null and void. Banner Content may only include text descriptions, graphics, pictures and other Content that is specific and relevant to the sale of the Product.
2. Banner Creation: Advertiser will have the option to utilize the BarLink Creative Service (“Creative”) for the design of the Banner, or to provide a Banner in acceptable digital format. Advertisers utilizing Creative (1.) may be required to pay a Creative Fee, which may vary from time to time, and (2.) will be required to provide Content, including Product logo, information, and any imagery that could be utilized in creation of the Banner. By utilizing Creative, (a.) Advertiser forgoes any creative input in the production of the Banner (“Banner Production”); (b.) Creative provides for thirty (30) minutes of design work per Banner Production—alterations, modifications or other requests that extend the required production time beyond thirty (30) minutes will incur an additional hourly fee, which may vary from time to time, at a minimum of thirty (30) minute intervals; (c.) Creative fees, as applicable, must be paid in advance of Banner production; (d.) Advertiser agrees to allow Creative the use of any provided Content, including Product logo, information, and any imagery for the use of Banner Production; (e.) Advertiser understands that ownership and copyright for any Banner produced by Creative will revert to Advertiser upon completion and approval; (f.) Advertiser agrees that it shall not hold BarLink, Creative, or its agents or employees liable for any incidental or consequential damages which arise from BarLink’s or Creative’s failure to perform any aspect of Banner Production in a timely manner, regardless of whether such failure was caused by intentional or negligent acts or omissions of BarLink, Creative, or a third party; (g.) BarLink and Creative disclaim all implied warranties, including the warranty of merchantability and fitness for a particular use. Banners produced by Creative will not contain ANY animation (for animated Banners, Advertisers will need to use a 3rd party). Banners produced by Creative will be presented to Advertiser for review and approval. Advertiser will be provided a twenty-four (24) hour period to provide any review comments or requests, after which time BarLink will assume the Banner approved by Advertiser. If BarLink rejects Advertiser’s submitted Banner and Advertiser is unable or unwilling to comply with BarLink Banner Content guidelines per the Terms of this Agreement, then this Agreement shall be deemed terminated and Advertiser’s sole remedy shall be to obtain a refund of any prepaid Slot Fee.
3. Slot Fee: Slots are provided to Advertiser in exchange for a monthly fee (“Slot Fee”) as specified on the BarLink ad order form (“Order Form”). Slot Fees are subject to change; Slot Fees provided for any given advertising campaign duration (“Campaign”) may vary upon renewal. A Slot Fee will apply to the entire length of an individual Campaign for which it was provided. Campaigns may consist of thirty (30) day or ninety (90) day periods; longer Campaigns may be negotiated from time to time, in advance, in writing, and by addendum to this Agreement. Each Slot Fee paid is specific to the purchase of one (1) Campaign providing one (1) Slot on one (1) Location Board. Slot Fees may vary from Location to Location; the Slot Fee at any given Location is specific to that Location and does not influence or create precedent for the determination of a Slot Fee at any other Location. Payment of Slot Fees are due in full and in advance. Advertiser’s Banner will not be displayed in any Slot space until payment of Slot Fee has been received and validated.
4. Slot Renewals: Unless provided for in advance, in writing, and by addendum to this Agreement, Advertiser is NOT guaranteed the renewal of any Slot at the end of a Campaign. Slots will be made available on a first come first serve basis and based on Advertiser’s willingness to make payment on any changes to Slot Fee. If other parties have bid or offered higher payment for Location Slots, highest bidders will receive first choice for monthly Slot availability.
5. Banner Specifications: Banner Content is to be formatted with no less than 20 point font. Text sizing and font selections must be visible and legible in the BarLink Location display format. BarLink reserves the right to require that Advertisers modify Banner Content that is not easily legible on a Location display. Banner size and Banner file size may not exceed the dimensions and file capacity specified on the Order Form. Banner background color tones must comprise of darker shades to accommodate the associated color scheme of the Location Board Display.
6. Slot Display Terms & Format: Advertiser’s Banner will be intermittently displayed on the right sidebar of the Location Board selected on the Order Form. Advertiser’s Banner will be evenly rotated along with all other Slots programmed for that Location Board and on an hourly basis; the frequency of impressions per hour for any given Campaign is dependant on the total number of Slots programmed for that Location Board. Advertiser’s Banner will display for no less than thirty (30) seconds on each appearance. BarLink does not represent or warrant consistency or condition of Banner display resolution or aspect ratio.
7. Payments: Advertiser shall be responsible for all charges as defined by each Campaign Agreement, or as provided for by any automated bidding through an online BarLink advertising account, and shall pay all charges in U.S. Dollars. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Advertiser is responsible for paying (1.) all taxes, government charges, and (2.) reasonable expenses and attorneys fees BarLink incurs collecting late amounts. To the fullest extent permitted by law, Advertiser waives all claims relating to charges unless claimed within sixty (60) days after the charge (this does not affect Advertiser’s credit card issuer rights). To the fullest extent permitted by law, refunds (if any) are at the discretion of BarLink and only in the form of advertising credit for only BarLink Campaigns. Nothing in these Terms or may obligate BarLink to extend credit to any party. Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to BarLink may be shared by BarLink with companies who work on BarLink's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to BarLink and servicing Advertiser's account. BarLink may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. BarLink shall not be liable for any use or disclosure of such information by such third parties.
8. Cancellation: BarLink, at its option, may terminate its relationship with Advertiser for the breach of any of the Terms hereof. Cancellation by Advertiser or BarLink during a Campaign will not result in refund of any Slot Fees, Creative Fees, or related Advertiser costs. Foregoing refund, Advertiser retains the right to request removal of a Banner from a Slot at any time.
9. Operational Matters: BarLink reserves the right in its sole discretion to determine all matters concerning the configuration of hardware, software, telecommunications, system components, advertising categories, positioning of Advertiser’s Banner, and other administrative or operational issues for the BarLink website and physical display of Location Boards as it deems necessary or helpful in the normal course of business.
10. Proprietary Rights. BarLink owns the BarLink Web site and all material and content contained in it. Nothing herein grants Advertiser or Location any right, title or license in either party's intellectual property rights, except only that Advertiser grants BarLink the limited, nonexclusive license to setup and display the Advertiser’s Banner (including any trademarks and servicemarks included within Content) on the Location Board for the duration of Campaign represented by this Agreement. Upon termination or cancellation of this Agreement, BarLink shall remove Advertiser’s Banner from the BarLink system. Nothing herein grants Advertiser any right to publish or use any trademark, servicemark, logo or name related to BarLink, or any Location, in any advertisement, sales promotion, press release, or any other public medium without BarLink’s or Location’s prior written consent. Nothing herein imposes any confidentiality restriction on either party.
11. Independent Contractors. Each party and its people are independent contractors in relation to the other party with respect to all matters arising under this Agreement. Nothing herein establishes a partnership, joint venture, association or employment relationship between the parties or any exclusive course of dealing.
12. Website Operation: BarLink does not represent or warrant that the function contained in the BarLink website or the operation of the BarLink web pages will be uninterrupted or error free, and therefore will not be liable to Advertiser for any damages, including any lost profits or other incidental, consequential or special damages arising out of the operation of, or inability to operate web pages or website. In the event of a failure or suspension of the BarLink website, or an individual Location Board, due to computer or network malfunction, Location negligence, congestion, repair, strike, accidents, fire, flood or any other cause or contingencies beyond the control of BarLink, it is understood and agreed that such suspension shall not invalidate this contract, but (1.) will give BarLink the option to cancel this Agreement, or if BarLink does not do so, (2.) upon resumption of BarLink system, or individual Location Board, this Agreement shall be continued, and in any event no liability for damages shall be incurred by BarLink by reason of such suspension.
13. Website Content: Advertiser understands that all information, data, text, software, music, sound, photographs, graphics, videos, user postings, messages or other materials (collectively, "Website Content") contained on this website, whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Website Content originated. BarLink does not control the Website Content posted and, as such, does not guarantee the accuracy, integrity, sensitivity or quality of such Website Content. Under no circumstances will BarLink be liable in any way for any Website Content, including, but not limited to, any errors or omissions in any Website Content, or any loss or damage of any kind incurred as a result of any WebSite Content posted, emailed, or otherwise transmitted via the website. Advertiser understands that there are also risks of dealing with underage persons or people acting under false pretense, and there may also be risks dealing with international trade and foreign nationals. By using this website, Advertiser agrees to accept such risks and Advertiser agrees that BarLink is not responsible for the acts or omissions of users on the website.
14. Data Tracking: BarLink will provide a quantity of visits, impressions, circulation, or other usage of the Banner Slot only if expressly so stated by BarLink. If not, BarLink makes no guarantee or representation as to such activity, nor as to the use of any particular tracking or information-gathering devices.
15. Advertiser Warranties: Advertiser represents and warrants that there is no Content or other material provided by Advertiser, or any named representative of Advertiser, or in any material to which the Content or other material links or refers, that violates any personal or proprietary right of any third party, constitutes false advertising, is harmful, or violates any law or governmental regulation. Advertiser agrees to indemnify and hold harmless BarLink, its employees, subsidiaries, and representatives against all liability, loss, damage and expense of any nature, including attorneys’ fees, arising out of the publishing, distribution, or transmission of any Banner submitted by or on behalf of the Advertiser regardless of whether BarLink Creative participated in the production of such Banner Content, or the linkage of any advertisement to any other material, or the loss, theft, use, or misuse of any credit or debit card or other payment, financial, or personal information. Violation of the foregoing may result in immediate termination of this Agreement or Advertiser's account without notice and may subject Advertiser to legal penalties and consequences to the fullest extent of applicable law.
16. Indemnification: Advertiser shall indemnify and defend BarLink, its partners, agents, affiliates, and licensors from any third party claim or liability arising out of BarLink website use, exposure to physical display of a Location Board, Banner Content, Product representations, use of BarLink Creative, and breach of the Agreement.
17. Assignment: This agreement may not be assigned by Advertiser without the prior written consent of BarLink, and any assignment without such prior written consent shall be deemed null and void. Advertiser may not use any Slot for the advertisement, either directly or indirectly, of any business organization, enterprise, product, or service other than that for which the Slot is provided by BarLink.
18. Legal Fees: In the event it becomes necessary for BarLink to retain the services of an attorney for purposes of enforcing any part of this Agreement, the non-prevailing party in any related legal matters shall be responsible for ALL legal fees for the parties involved.
19. Disclaimer and Limitations of Liability: BarLink’s liability for any failure to publish a Banner shall not exceed a credit for applicable Slot Fee for such Banner. BarLink’s sole liability (and Advertiser’s sole remedy) for errors/omissions by BarLink in publishing a Banner shall be to provide Advertiser a credit for the actual space of the error/omission if the error/omission is brought to BarLink’s attention no later than five (5) working days after the Banner first appears; however, if copy of the Banner was provided or reviewed by Advertiser prior to publication in a Slot, BarLink shall have no such liability whatsoever. Furthermore, in the event of a dispute between Advertiser and one or more website users, Advertiser fully release, and forever discharges and covenant to hold harmless BarLink and Location ownership (and our parents, subsidiaries, affiliates, and their and our respective employees, officers, directors, shareholders, members, assigns, and successors in interest) of and from any and all liabilities, losses, expenses, actions, rights and causes of action of whatsoever kind or nature, resulting from or in any way related to or in any way arising or growing out of any and all known and unknown damages, expenses, costs, losses, liabilities, claims, and the consequences thereof, arising out of or in any way connected with such disputes. All services, technology or other deliverables are supplied by BarLink strictly on an "as is" and "as available" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. Advertiser accepts all risk concerning suitability, use, performance or nonperformance. BARLINK MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION AND FITNESS FOR A PARTICULAR PURPOSE.
20. Enforcement: Failure by BarLink to enforce any Terms of this Agreement shall not be considered a waiver of such Terms.
21. Choice of Law: THIS AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES JOINTLY WROTE IT AND GOVERNED BY FLORIDA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF COLLIER COUNTY, FLORIDA, USA; BARLINK AND ADVERTISER CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
22. Miscellaneous: The Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g. reference to a purchase order number) or oral discussions are void. Each party shall not disclose the terms or conditions of these Terms to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation. Advertiser may grant approvals, permissions, extensions and consents by email, but any modifications by Advertiser to the Agreement must be made in a writing executed by both parties. Any notices to BarLink must be sent to Beach Gremlins Networks Inc., DBA BarLink Online, 4500 26th Ave SW, Naples, Florida, 34116, USA, with a copy to Legal Department, via confirmed facsimile, with a copy sent via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect. Advertiser may not assign any of its rights hereunder and any such attempt is void. In the event that these Terms expire or are terminated, BarLink shall not be obligated to return any materials to Advertiser. Notice to Advertiser may be effected by sending an email to the email address specified in Advertiser's account, or by posting a message to Advertiser's account interface, and is deemed received when sent (for email) or no more than 15 days after having been posted (for messages in Advertiser’s account interface).
9/19/2010
