adfactory.com
TERMS OF SERVICE AGREEMENT
GENERAL
Welcome to adfactory.com (the “Website”). The adfactory.com site is owned and operated by adfactory, llc (the “Company”). All references herein to the Website, “Us” and “We" (and “our”) include and mean the corporate identity of the Company.
This Terms of Service Agreement (this “Agreement”) as well as all other rules policies and guidelines posted on the Website, including, without limitation, the Privacy Policy, the User Code of Conduct, Writer Code of Conduct, the Buyer Code of Conduct, Moderator Code of Conduct, and the Copyright Information (all of which are incorporated herein by reference), set forth the terms, provisions and conditions upon which the Company is willing to provide You access to and use of the Website and governs the use of the services provided by the Company through the Website. In the event of any conflict between this Agreement and any other documents incorporated herein by reference, those terms that are more favorable to the Company shall govern. Any User of the Website may be referred to as a “User” or “You” (and “your”) within the body of this Agreement. Any individual or entity that (i) provides ads is referred to as a “Writer” or (ii) purchases ads is referred to as a “Buyer.”
This Agreement is a legal and binding Agreement between the Company and You and supersedes all previous prior Agreements, representations, statements, negotiations and undertakings with respect to the subject matter herein. Please review the following carefully. Using any service that the Website provides is the User’s indication that such User accepts this Agreement and agrees to be legally bound by its terms and conditions, as well as the terms and conditions of all other policies, guidelines and rules located on the Website, including, without limitation, the Privacy Policy, the User Code of Conduct, the Writer Code of Conduct, the Buyer Code of Conduct, the Moderator Code of Conduct and the Copyright Information. If You do not agree to be bound by this Agreement, then do not use any of the services provided on the Website.
GENERAL RULES OF USAGE
Legal Capacity: Only persons or entities that can lawfully enter into and form legal contracts may use the Website and our services. If You use our services, You expressly represent to Us that You are at least eighteen (18) years of age and may lawfully enter into and form binding contracts, conditions, obligations, affirmations, representations and warranties.
U.S. Citizens and Residents Only; PayPal Accounts Required: In addition, to create an Account, You must also: (i) be a citizen or resident of the United States; and (ii) own a PayPal account so we can transfer you your earnings.
Content Screening: While the Company does not have an obligation to screen, edit or review third party content, the Company does have the right, in its sole discretion, to refuse, change, remove or move any content it deems inappropriate. In addition, the Company has the right but not the obligation to refuse to provide services to any Buyer for any reason whatsoever.
The Company may provide online moderators (the “Moderators”) who are given the ability to remove ads in their entirety and/or comments or other information posted or provided by Users that, in a Moderator’s sole discretion, are found to have violated this Agreement or are otherwise inappropriate. In general, such removals will be conducted without commentary. Moderators may be volunteer independent contractors or representatives of the Company.
The Company also reserves the right to engage a “Writer Dispute Resolution System” whereby Users may flag inappropriate content for review and removal by the Company. All Users agree that We may use this system as an informal way of allowing our community to become involved with the policing of the Website. Our Dispute Resolutions System provides a method for the User community to informally become involved with policing the rules, policies and guidelines of our web site.
ACCOUNT AND SERVICES
Accounts: To use the Website, a User must first create a User account (the “Account”) as specified in the User Code of Conduct. You acknowledge and agree that THE Company, its officers, directors, agents, and employees, shall not be liable for any losses, damages, and/or expenses arising from or relating to your failure to maintain the confidentiality of your login identification and password, including any unauthorized disclosure of any User information, AND YOU AGREE TO INDEMNIFY THE COMPANY AND ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES from and against any and all losses, costs and expenses, damages Or other liabilities (including reasonable attorneys’ fees and expenses) incurred by Us from arising from Or relating to any unauthorized use of a login IDENTIFICATION or password.
Services: We offer a venue where Buyers can meet Writers and transactions may take place. When a Writer publishes via upload his/her ad for a particular campaign, that Writer is making a legally binding offer to sell that ad, on an exclusive basis, to the Buyer who has posted the campaign. Should the Buyer accept the ad and purchase the same, the Writer has legally concluded the sale of that ad and must consummate the sale, as the sale is a part of a binding contract. Accordingly, Buyers should select a final winner only when they are completely satisfied with the ad. In providing an online venue, We do not source or deliver ads.
Sales Procedures: The sales procedures are specified in the User Code of Conduct.
EACH BUYER ACKNOWLEDGES AND AGREES THAT THE COMPANY AND ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY LOSSES, DAMAGES AND EXPENSES ARISING FROM THE FAILURE OF GOOGLE.COM TO RECEIVE THE PURCHASED ADS OR UPLOAD THE PURCHASED ADS.
We retain the right, but do not have an obligation, in our sole and absolute discretion, to immediately stop any campaign or transaction, prevent or restrict access to the Website or our services, or take any other action in case of technical problems, objectionable material, inaccurate campaign listings, inappropriately categorized campaigns, inaccuracies, unlawful campaigns or content, procedures or actions otherwise prohibited by our policies and rules, or for any other reason.
Transfer of Ownership. The Writer, upon purchase, thereby irrevocably transfers all rights, ownership, intellectual property interests and legal title of the ad to the Buyer. If an ad is purchased, the Writer will not use an identical ad in any future campaign (except for display as an example of the Writer’s work for portfolio purposes) nor offer to resell the identical ad to anyone else as the Buyer obtains sole and exclusive ownership to the ad via the purchase: it cannot be resold. All Writers agree to execute any reasonably required documentation proving the lawful transfer of ownership and control of the winning ad to the Buyer who has paid for that ad upon the request of the Buyer.
Ad Fees: The ad fees are specified in the User Code of Conduct.
USER REPRESENTATIONS
User Information: If You place content on the Website, including ads, You agree to provide true, accurate and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. You are entirely responsible for all content that You provide or otherwise make available via the Website. You also warrant and represent that You own or otherwise control all of the legal rights to such content including, without limitation, all the rights necessary for You to post and sell the content on the Website. While we make every effort to ensure that the information on the Website is accurate, You understand and agree that the Company is not responsible for the content on the Website provided by third parties and the Company makes no representations or guarantees as to the accuracy or reliability of any information provided on the Website.
THE COMPANY WILL NOT REVIEW OR INVESTIGATE ANY SUCH INFORMATION OR ADS PROVIDED BY A USER AND MAKES NO WARRANTY OR GUARANTEE REGARDING SUCH INFORMATION. You acknowledge and agree that THE Company, its officers, directors, agents, and employees shall not be liable for any losses, damages, and/or expenses arising from or relating to ANY THIRD PARTY INFORMATION POSTED ON THE WEBSITE AND YOU AGREE TO INDEMNIFY THE COMPANY AND ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES from and against any and all losses, costs and expenses, damages Or other liabilities (including reasonable attorneys’ fees and expenses) incurred by Us arising from or relating to SUCH any UNTRUE AND INACCURATE INFORMATION YOU POST ON THE WEBSITE.
We do not endorse any User submitted content to the Website, or any opinion, recommendation or advice expressed by Users. We expressly disclaim any and all liability in connection with content submitted by Writers.
Credit/Debit Cards: In providing a credit card or debit card number, You represent and warrant that You are an authorized User of such credit card or debit card. You agree that the Company may disclose your credit card or debit card information and other related User information to the Company’s designated service provider(s) for their use in charging You for activation of your Account and ongoing purchases of ads.
Writers: The Writer represents and warrants that it is the sole owner of (or otherwise has the right to control) each ad, each ad was not copied in whole from an existing ad or work and does not otherwise violate any intellectual property law or any other law or right belonging to a third party (the representations and warranties in this sentence are referred to herein as the “Writer IP Representations”).
Neither the Company nor any of its officers, directors, agents or employees shall be responsible for any violation by a Writer of the Writer IP Representations and a Writer shall indemnify the Company and its officers, directors, agents and employees from and against any and all losses, costs, expenses, damages or other liabilities (including reasonable attorneys’ fees AND EXPENSES) incurred by Us arising from OR RELATING TO a breach of the Writer IP Representations. Each Buyer hereby waives and releases the Company and its officers, directors, employees and agents from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with a Writer’s breach of the Writer IP Representations and with such dispute. In the event of a breach of the Writer IP Representations, each Buyer acknowledges and agrees that it will seek any and all forms of redress from the breaching Writer and not the company.
COMPANY INTELLECTUAL PROPERTY AND INTELLECTUAL PROPERTY RIGHTS
Intellectual Property: Any and all content and intellectual property presented on the Website (except for ads as described herein) is owned exclusively by or validly licensed by the Company, is protected by various local, state and federal laws and other legal restrictions and, except as otherwise provided herein, shall at all times remain the sole and exclusive property of the Company. Except as provided in this Section 5, You have no rights to such content or intellectual property nor may You use any such content or intellectual property, without the Company’s consent. You agree that You will not alter or modify any content or intellectual property on the Website in any manner without the express written consent of the Company. Users agree that they will not use any robot, spider or other automatic device, or manual process to monitor or copy our web pages or the content contained therein without prior written permission of an authorized officer of the Company.
Each User represents that if allowed to use any Company owned trademarks, it will not use such trademarks in connection with any product or service that is not provided by Us, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits our business or the Website. All other trademarks displayed on the Website are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation by Us of those particular vendors.
Limited License: Subject to and conditioned on compliance with this Agreement, We grant You a limited personal, non-transferable, non-assignable, non-sublicensable, revocable license to access and to use the Website for the purpose of buying and selling the services offered by Buyers or Writers.
Writer License: By providing any information and ads to Us, You grant, and You represent and warrant that You have the right to grant, an irrevocable, non-exclusive, worldwide license to use, copy, perform, display, and distribute the content for sale until and unless your content is sold or You remove the content from the Website.
Purchased Ad License: All ad entries, including sold ads, may remain published on the Website in our community portfolio so they can be seen by members of the public. All Users who may have a legal interest in such ads give Us a permanent, transferable, royalty free license to publish such entries on the Website.
Enforcement: In enforcing the rights and restrictions set forth herein, the Company reserves the right to disclose the identity of any User posting or transmitting any information or materials violating this Section 5 to law enforcement authorities or pursuant to any court order requesting or directing the Company to disclose such information. The Company and its licensors reserve all rights not expressly granted in this Section 5 as well as the Website. Except as expressly provided in this Section 5, no other license under any patents, copyrights, trademarks, trade secrets or any other intellectual property rights, express or implied, are granted by the Company to You under this Agreement.
DISPUTES AND WAIVER
Buyer/Writer Disputes: We do not intercede or become involved with or between any disputes between Writers and Buyers.
User Disputes: If You have a dispute with another User, You release Us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. You hereby waive California Civil Code Section 1542 (and any analogous law in any other applicable jurisdiction), which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You further acknowledge that this waiver is an essential and material term of this Agreement, and that without such waiver, We would not have entered into this Agreement.
TAXES AND LEGAL COMPLIANCE
Taxes: All Writers are solely responsible for their own taxes. Each Writer is solely responsible for satisfying all income tax, payroll tax, withholding, sales and use tax, governmental reporting and other tax and legal requirements under applicable law. Writers are independent contractors and not employees of the Company. Writers agree that the Company will file information returns as required by applicable law with all appropriate government agencies detailing the total consideration paid to each Writer during each year of this Agreement. To this end, each Writer shall provide Company with such Writer’s taxpayer identification number and mailing address promptly.
Legal Requirements: You are responsible for compliance with applicable local laws, keeping in mind that access to the contents of the Website may not be legal for or by certain persons or in certain countries. Each User assumes all knowledge of applicable laws, including tax, copyright and trademark law, and is responsible for compliance with any such laws. The User may not use our tools and services in any way that violates applicable local, state, federal or international laws, regulations or other government requirements. Each User further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation.
GENERAL USER RULES
All Users agree to hold the Company harmless and to indemnify the Company from any loss, damage, cost, fee and reasonable attorney's fees and expenses regarding any actual or threatened litigation arising from or relating to your violation or alleged violation of the actions described in the General User Rules Section of the User Code of Conduct, including copyright and trademark litigation.
Much of the information on the Website is updated on a real-time basis and is proprietary to Us, our Users or third parties. You agree that You will not use any robot, spider, scraper or other automated means to access the Website for any purpose without our express written permission. Additionally, You agree that You will not: (i) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute, sell, publicly display or otherwise exploit the Website, any part thereof, or any content (other than content You have submitted to Us or You have purchased from a Writer) from the Website without our prior express written permission and that of the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of the Website or any activities conducted on the Website; or (iv) bypass any measures We may use to prevent or restrict access to the Website. Notwithstanding the foregoing, We grant the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. The Website or any portion thereof may not be reproduced, duplicated, copied, sold, resold or otherwise exploited for any commercial purpose that is not expressly permitted by Us, in writing.
We may report fraudulent conduct to law enforcement, and We will cooperate with law enforcement to ensure that violators of the law are prosecuted to the fullest extent of the law.
MODIFICATIONS
Modification of this Agreement: We may modify or alter this Agreement at anytime without any prior notice to You. In the event that You disagree with any modification to this Agreement your sole recourse is to refrain from using the Website and the tools and services that We provide. If after any modification or alteration, You continue to use any of our tools or services or the Website, it shall be deemed an express indication to Us that You expressly agree to be bound by each and every term and condition of the modified Agreement as posted on the Website.
Modification of Services: We reserve the right to modify or discontinue the services, and the Website, with or without notice to You. We shall not be liable to You or any third party should We exercise our right, in our sole discretion, to modify, terminate, restrict or discontinue any or all of the services without prior notice to You; provided, however, that in the event We discontinue the Website, We shall refund to a Buyer the amount of unused credits in such Buyer’s account.
THIRD PARTY SITES
The Website may include links to other sites on the Internet that are owned and operated by online merchants and other third parties. You acknowledge that We do not control nor are We responsible for the availability of, or the content located on or through, any third party site. The fact that We have linked to any third party sites does not necessarily create or imply a relationship or partnership with the operator of such third party site. You should contact the site administrator or webmaster for those third party sites if You have any concerns regarding such links or the content located on such sites. Your use of those third party sites is subject to the terms of use and privacy policies of each site, and We are not responsible for any information in or products or services provided by such third party sites. We encourage You to review said privacy policies of such third party sites.
GOVERNING LAW
The laws of the Commonwealth of Pennsylvania and the federal laws of the United States will govern this Agreement, without giving effect to any choice of law rules. We make no representation that the Website or other services are appropriate, legal or available for use in other jurisdictions. Those Users who access the Website from other jurisdictions do so as their own choice and are solely responsible to comply with local law. Accordingly, if You choose to access the Website, You agree to do so subject to the internal laws of the Commonwealth of Pennsylvania and the federal laws of the United States. All legal disputes between You and the Company shall be resolved exclusively by mandatory, binding American Arbitration Association arbitration between the parties. Each party shall prepay their related share of the costs and fees of arbitration and the decision of the arbitrator shall be final and enforceable by the Courts of the Commonwealth of Pennsylvania and the United States and the jurisdiction in which the parties reside and or are employed. In addition, notwithstanding the foregoing, each party may bring an action for specific performance or injunctive relief in any court of competent jurisdiction.
Regardless of any statute or law to the contrary, all causes of action against the Company must commence within thirty (30) days after the cause arises, or the cause of action is forever barred.
NOTICIES
General Notices: Unless You otherwise notify us in writing, We will communicate with You by email (using the email address You provided to Us during the Account creation process) or by posting communications on the Website. You consent to receive communications from Us electronically and You agree that these electronic communications satisfy any legal requirement requiring that such communications be in writing. You will be considered to have received a communication 24 hours after we send it to the email address You have provided Us (unless the sender is notified that the email address is invalid), or when We post such communications on the Website. You must keep your email address updated, and You must regularly check the Website for postings. We may also provide legal notice to the address provided during the Account creation process (as such address may be changed by You). In such case, notice shall be deemed given three (3) days after the date of mailing. All notice to Us intended to have a legal consequence concerning this Agreement must be in writing and delivered either in person or by a means evidenced by delivery receipt, to the following address.
adfactory, llc
ATTENTION: Support
PO Box 439
Horsham, Pennsylvania 19044
Notification of Claimed Copyright Infringement: Pursuant to Section 512(c) of the United States Copyright Revision Act, as enacted through the Digital Millennium Copyright Act, We designate the following individual as our agent for receipt of notifications of claimed copyright infringement for complaining individuals residing or working in the United States of America. (Residents of other nations may send copyright complaints to Us for our review and consideration following this format. Our ultimate action, if any, will depend on the nature of the complaint sent to Us.)
By Mail
adfactory, llc
ATTENTION: Lance Hollander, Managing Partner
512 Horsham Road
Horsham, Pennsylvania 19044
By Email
support@adfactory.com
TERMINATION
This Agreement shall become effective upon your acceptance or your use of the Website and shall continue until terminated by a User or the Company as provided under the terms of this Section 13. Unless otherwise agreed to in writing between the parties, either party may terminate this Agreement at any time upon notice to the other party. In such event, We shall continue to perform those services necessary to complete any open transaction between You and another User, and all amounts owed by You must be paid promptly when due. When your Account is terminated, You may no longer have access to data, messages, files and other material You keep on the site. Those provisions of this Agreement which by their nature are intended to survive termination of this Agreement, whether or not specifically so stated herein, shall survive.
DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
Appendix 1 contains disclaimers, limitations of liability and indemnification provisions applicable to this Agreement and shall be deemed to be incorporated herein.
MISCELLANEOUS TERMS
We will not be considered to have modified or waived any of our rights or remedies under this Agreement unless the modification or waiver is in writing and signed by an authorized representative of Us. No delay or omission by Us in exercising our rights or remedies will impair our rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. If any provision of this Agreement shall be unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provision) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent. You shall not be able to assign this Agreement without our prior written consent. You agree that this Agreement and any other Agreements referenced herein may be assigned by Us, in our sole discretion, to a third party in the event of a merger or acquisition. This Agreement, and the documents referenced herein, are the entire Agreement between the parties relating to the subject matter herein, and supersede all prior Agreements and understandings between or among the parties, written, oral or otherwise, relating to such subject matter. The bold paragraph headings in this Agreement are included for ease of reference only and have no binding effect. You agree that by accepting this Agreement You are consenting to the use and disclosure of your personally identifiable information and other practices described in our Privacy Policy Statement.
This Agreement and any registration for or subsequent use of the Website will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between You and the Company, except and solely to the extent expressly stated. All Users are independent contractors.
Appendix 1
Disclaimers; Limitations of Liability; Indemnification
DISCLAIMERS
YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE AND/OR SERVICES IS AT YOUR SOLE RISK AND RESPONSIBILITY. THE WEBSITE, MATERIALS CONTAINED ON THE WEBSITE AND/OR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” SUBJECT TO ANY AND ALL FAULTS AND DEFECTS AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY (INCLUDING WITHOUT LIMITATION ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, LICENSORS, SUPPLIERS, PARTNERS, RESELLERS AND/OR AFFILIATES (COLLECTIVELY, FOR PURPOSES OF THIS DISCLAIMER SECTION, THE “RELATED PARTIES”)) HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, SECURITY, CORRECTNESS AND NON-INFRINGEMENT, TITLE, OR COMPLIANCE WITH ANY FEDERAL, STATE OR OTHER LAW(S), AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, STATUTORY OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT, THE WEBSITE, THE SERVICES, THE ADS AND/OR ANY USER INFORMATION IN THE COMPANY’S POSSESSION.
You agree that the Company and Related Parties are not responsible for and shall have no liability for, and You hereby release the Company and Related Parties from any and all liability and damages pertaining to, the continued availability, reliability, accuracy, timeliness, results or performance of the Website, the services, the ads, the performance of the internet, the downloading compatibility of any materials or software with your computer systems, the existence of any virus, worm, malicious code or other disabling device from any source (including, without limitation, the Website), or for the unauthorized access to or use of User information by a party other than the Company.
You further agree that the Company and Related Parties are not responsible for, shall have no liability for, and make no representations, warranties or covenants that: (i) any of the services, the ads, the Website and/or any other disclosed User information will be stored, transmitted or received in an accurate, timely or complete manner; (ii) any of the services, the ads, the Website and/or any other disclosed User information will remain available, unaltered, uncorrupted and usable as intended; and/or (iii) any content on the Website or other disclosed User information is secure from any attack or any intentional or unintentional damage or deletion. You hereby release the Company and Related Parties for any and all liability and damages pertaining to any and all of the foregoing.
When using the Website, User information will be transmitted over a medium that may be beyond the control and jurisdiction of the Company. Accordingly, the Company and Related Parties assume no liability for or relating to the delay, failure, interruption or corruption of any data or other User information transmitted in connection with use of the Website. The Company expressly disclaims any and all liability for any technical failures (including hardware or software failures), incomplete, scrambled or delayed computer transmissions, and/or technical inaccuracies, or loss of use of data, as well as unauthorized access of User information by third parties arising out of or related to this Agreement. The Company and Related Parties do not represent or warrant that the Website or the services will operate without error, that defects will be corrected, or that the Website (including the server, hardware or software making it available) or the services are free of viruses or other harmful components. You hereby release the Company and Related Parties for any and all liability and damages pertaining to any and all of the foregoing.
Neither the Company nor Related Parties represent, warrant or covenant that the Website, the services or the ads, will satisfy your requirements except as otherwise provided in this Agreement. Without limiting the foregoing, neither the Company nor Related Parties make any representations or warranties regarding satisfaction of applicable government regulations. You hereby release the Company and Related Parties for any and all liability and damages pertaining to any and all of the foregoing.
For avoidance of all doubt, You hereby release the Company and Related Parties from any and all liability and damages pertaining to your use or misuse of any of the services herein, for any and all reasons, specifically including without limitation any instances wherein the damages are directly or indirectly caused by the negligence, gross negligence and/or willful misconduct of the Company.
No advice or information given by any subsidiary, affiliate, officer, director, employee or agent of the Company shall create a warranty or representation binding upon the Company unless it is provided in writing and signed by the Managing Partner of the Company. No one else is authorized to make any representation or warranty on the Company’s behalf, and You cannot rely on any other representation or asserted warranty or guarantee.
LIMITATIONS OF LIABILITY
WE SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR WE SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, STATUTORY, INCIDENTAL OR OTHER DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE WEBSITE, THE TOOLS AND SERVICES WE PROVIDE, OR THE INFORMATION CONTAINED THEREIN, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY BE INAPPLICABLE IN THOSE JURISDICTIONS. TO THE EXTENT THAT THE COMPANY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF THE COMPANY’S LIABILITY SHALL BE THE MINIMUM PERMITTED BY APPLICABLE LAW.
In NO EVENT SHALL the aggregate liability of THE Company for any and all claims ARISING OUT OF OR RELATING IN ANY WAY TO YOUR USE OR INABILITY TO USE THE WEBSITE OR THE SERVICES EXCEEd $50.00 (Fifty Dollars). All of the Foregoing Exclusions, limitations and disclaimers set forth in this Agreement shall apply to the maximum extent permitted by applicable law, even if any such Exclusions, limitations and disclaimers fail its essential purpose.
Except when purchasing services for its own use, the Company is not a party to any contract for ad services. We have no control over and do not guarantee the quality, safety or legality of the ads, the truth or accuracy of campaign listings or User information, the qualifications, background or abilities of Users, the ability of Writers to deliver ads, or that Users will complete a transaction. We make no warranties or representations whatsoever with regard to any product provided or offered by any Writer, and You acknowledge that any reliance on representations and warranties provided by any Writer shall be at your own risk. You assume sole responsibility for conducting reasonable due diligence regarding verifying any claims as to the original nature of any ad or other product or service that You purchase via the Website. Each Writer and Buyer must look solely to the other for enforcement and performance of all the rights and obligations pursuant to the transactions it entered into with another on the Website, and any other terms, conditions, representations or warranties associated with such transactions.
Except for the payment of fees to Us, neither You nor We shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party shall be extended by the period of such delay.
INDEMNIFICATION
You agree to indemnify and hold Us, our subsidiaries, affiliates, directors, agents, officers, employees, and agents harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of any infringement by You or anyone employed or contracted by You of any intellectual property or any other right of any person or entity, such as the rights of publicity and privacy.
You agree to defend, hold harmless and indemnify the Company, our subsidiaries, affiliates, directors, officers, employees, and agents, from and against any and all losses, costs, expenses, damages or other liabilities (including reasonable attorneys’ fees and expenses) incurred by Us: (i) in connection with your use of our services or the use of the service using your Account, including any payment obligations incurred through use of the services; or (ii) resulting from: (a) your use of the Website (b) your decision to supply User information via the Website, including, without limitation, credit information and other personal financial information; (c) your decision to submit postings and accept offers from other Users; (d) any breach of contract or other claims made by Users with which You conducted business through the Website; (e) your breach of any provision of this Agreement; (f) any liability arising from or relating to the tax treatment of payments or any portion thereof; (g) any negligent or intentional wrongdoing by any User; (h) any act or omission of yours with respect to the payment of fees; (i) your dispute of or failure to pay any invoice or any other payment; and/or (j) your obligations to another User. This defense, hold harmless and indemnification will survive this Agreement and your use of the Website.
