This Gridtrax Advertiser Terms of Service agreement ("Agreement") is entered into among and between you, and Whenever Possible Productions LLC., the owners and operators of the Gridtrax website (collectively, the "Service" or "Gridtrax").
Select radio stations across the country are streaming a variety of broadcast programming content and formats through third party operator service providers ("Streaming Player(s)"). Gridtrax is an online tool that provides individuals and entities ("Advertisers") with the ability to create and place advertising on radio stations streaming such content.
IF YOU DO NOT AGREE TO BE BOUND BY ANY AND ALL OF THE TERMS OF THIS AGREEMENT, PLEASE DO NOT ACCESS THIS SERVICE.
By your use of the Service, you represent and warrant that you have the authority to consent to this Agreement and that you are authorized to act on behalf of, and bind to this Agreement, any third party which you represent. You also certify that you and any third party that you may represent meet the eligibility requirements of the Service.
You hereby understand, acknowledge and agree:
Some Service features may be in test mode and will be identified as "Beta" or otherwise unsupported ("Beta Features"). You acknowledge, understand, and agree that the Service is provided "as is." Your use of the Service is at your option and own risk.
You are solely responsible for:
(a) the selection of the type of audience that you wish to reach using the Service based on gender, age, geographic location, radio station format, programming or other factors ("Target Audience").
(b) all creative components of your advertisement (your "Advertisement") whether or not the Advertisement is created and/or placed by you through the Service, including but not limited to advertisements, text, music, sounds, logos, photographs, graphics, images, video and a website Uniform Resource Locator ("URL") (also known as domain name or website address) (collectively, "Creative") generated by you or on your behalf.
(c) the content and subject matter of your entire Advertisement, whether or not you used the Service to create the Advertisement in whole or in part, and all Creative generated by you or on your behalf, and/or any Creative supplied by the Service. All Advertisement content and subject matter should meet the criteria for acceptable Advertisements. Examples of unacceptable Advertisements include cigarette advertising, Advertisements with offensive, inappropriate, crude or strong language, and Advertisements for pornographic sites. All Advertisements should clearly and unambiguously state the product or service that is being advertised.
(d) web sites directed from Creative URLs.
(e) the protection of your user name and passwords, and any third party use of your account(s) and use of the Service accessed under your user name and password.
(f) compliance with any applicable laws for your Advertisement and any website linked from your Advertisement (including all services or products therein).
Intellectual Property and Other Proprietary Rights.
(a) You represent and warrant that you own all intellectual property, including all copyrights, trademarks, privacy, publicity and any other rights to the Creative generated by you (collectively, "Intellectual Property"), in whole or in part, or on your behalf, that you submit to the Service. You also warrant that you are the holder of any rights, including digital and moral rights in such content, and that if you are not the holder of such rights, the holder of them has completely and effectively validly and irrevocably granted to you the right to use the Intellectual Property and grant the license set forth in this Agreement. Specifically, with regard to use of music, you represent and warrant that you have obtained all synchronization rights to use such music in the Advertisement. You also represent and warrant that you know of no individual or entity whose rights will be infringed upon by our possession, review, broadcast, transmission, performance, display or use of the Advertisement.
(b) If you submit a completed Advertisement to the advertisement placement tool (without use of the advertisement creation tool) to be placed by the Service, as a condition to and in sufficient consideration for using the Service, you hereby grant the Service, its Owners and Operators, and their parent company(s), affiliates, successors and assigns, a royalty-free, worldwide, perpetual, irrevocable, non-exclusive license and all rights (including moral rights) to use, access, copy, distribute, communicate to the public, display, and publicly perform any Creative generated (in whole or in part) by you or on your behalf, using the Service. You also permit Streaming Player listeners to access, display and view all Creative and Advertisements.
(c) If you utilize the Service's advertisement creation tool, as a condition to and in sufficient consideration for using the Service, you hereby grant the Service, its Owners and Operators, and their parent company(s), affiliates, successors and assigns, a royalty-free, worldwide, perpetual, irrevocable, exclusive license and all rights (including moral rights) to use, access, copy, distribute, communicate to the public, display, and publicly perform any Creative generated (in whole or in part) by you or on your behalf, using the Service. You also permit Streaming Player listeners to access, display and view all Creative and Advertisements. Any Creative or Advertisements submitted by you will not be made available to other Advertisers through the Service and will only be available for your use.
(d) You retain all rights to your Advertisement that are not otherwise assigned to us under this Agreement. To the extent that any Creative is provided by the Service, we retain any and all rights that may exist in such Creative.
(e) You hereby understand, acknowledge and agree that you may not download or copy (either from the Service or the Player) any Advertisement or Creative, in whole or in part, built by or provided through the Service, including any completed Advertisement that you submit to the Service. Therefore, to the extent that Advertisements are made with your Creative or that are already completed, please keep a copy of all Creative and/or completed Advertisements that you submit to the Service. We cannot guarantee that we will retain your Advertisement and/or Creative in the Service's storage system for longer than three (3) months.
Right of cancellation. You may cancel any online campaign at any time by logging into your account and terminating the campaign. We will process your cancellation request within twenty-four (24) hours and you understand and agree that you will be responsible for any and all charges that accrue prior to the effective date and time of the cancellation of your online campaign. We are not responsible for cancellations not submitted or processed due to difficulties accessing the Internet, service outages or delays, computer difficulties or other technological glitches.
We may reject or remove Advertisements at any time at our sole discretion to comply with any policies or applicable law.
We may modify or cancel the Service, Streaming Player(s) or the terms and conditions of the Service at any time without liability.
We reserve the right to, at our sole discretion, to terminate your account or use of the Service at any time, delete any or all of your Creative or Advertisements, or block your access to the Service.
You shall not authorize any party on your behalf to advertise any illegal product or service or engage in any illegal or fraudulent business practice. Our acceptance of an Advertisement is not an endorsement by us of the goods, services or messages conveyed in the Advertisement, of you, or of your business practices (including the privacy policies), and at no time shall you hold out such acceptance as an endorsement. Streaming Player listeners may from time to time enter into correspondence with you or participate in promotions offered through your Advertisement. However, all such correspondence and resulting contractual agreements are solely between you and the Streaming Player listeners.
Disclaimer and Limitation of Liability
We disclaim all guarantees regarding Advertisement play, the number of impressions, the delivery of any impressions, including the levels or timing of the "Cost Per Impression." During the bidding process, we provide our best estimate of the number of impressions you will achieve with your online campaign. The actual number of impressions delivered will depend on the number of subscribers registered for a streaming service, the number of listeners to the streaming service for a particular Radio Station, and Streaming Player activity at any given time. We provide the estimate of the number of impressions based on the targeting criteria you provide and the number of actual listeners that were available within such criteria during the previous twenty-four (24) hours.
We do not guarantee confirmation of any placement or broadcast of commercial schedules. All schedules are subject to preemption. However, you will not be charged for any Advertisement or schedule that does not run, for any reason.
(a) We are not responsible for Advertisements or bids not submitted or processed due to difficulties accessing the Internet, service outages or delays, computer difficulties or other technological glitches.
(b) We do not guarantee that you'll be a winning bidder given the level of bidding activity and the inherent fluctuations of the Service.
(c) You will be charged only for the Advertisements actually run.
No makegoods will be given for any Advertisement that does not run, for any reason.
Payment for the Service will be conducted in the following manner:
You agree and represent that all information you provide for the purpose of enrolling as a user is accurate, complete and current. Your right to access your account with us is subject to any limits established by us, our third-party contractors (such as Verisign), or by your credit or debit card issuer.
Your Advertisement campaign will begin to run only up on completion of the following:
(b) submission of your Advertisement
(c) placement of your order
(d) approval of your Advertisement, and
(e) submission of your billing information.
We will charge your account Fifty Dollars (US $50.00) (the "Initial Amount") for your use with your initial advertising campaign. Any amounts in excess of this Initial Amount will be charged to your credit or debit card. If payment cannot be charged to your credit or debit card, for any reason, or if there is a charge-back for any reason, we reserve the right to either suspend or terminate your account, which may include but not be limited to, removal of your Advertisements and campaign.
(a) You agree to the following:
(b) you will be responsible for any and all charges incurred by any campaign order submitted, accepted and broadcast using the Service;
(c) you understand that agree that you will be charged the bid price that you specify for your campaign that is accepted by the Service as the winning bid price and such charge will be incurred each time that your Advertisement is exposed to Streaming Player listeners;
(d) you understand and agree that the charges you incur are calculated based on the number of impressions for your Advertisement as determined by the Service.
(e) Any claims or questions you may have with respect to any charge incurred in relation to the Service can be sent to us at email@example.com
(f) Charges are exclusive of any taxes. You are responsible for paying any and all applicable taxes and government charges.
You understand, acknowledge, and agree to defend, indemnify, and hold harmless us, our parent company(s), corporate affiliates, successors and assigns, Advertisers, suppliers and operational service providers and their respective officers, directors, employees, representatives and agents, or others involved in creating, promoting, or otherwise making available this Service from and against any claims, actions, costs, expenses, or demands, including, without limitation, reasonable legal and accounting fees, resulting from any content you submit, post to or transmit through this Service, your use of the Service, your violation of this Agreement, your violation of any rights of another, or otherwise arising out of your use of this Service in any manner. We will attempt to provide notice to you promptly of any such claim, suit, or proceeding and may assist you, if timely requested and at your expense, in defending any such claim, suit or proceeding. We reserve the right to take exclusive control and defense of any such claim subject to indemnification by you, in which event you will cooperate fully with us in asserting any available defenses.
The Service may contain technical inaccuracies, typographical errors, and out of date information. The Service makes no representations about the accuracy, reliability, completeness, or timeliness of the Service or the Creative provided by us, and the Service makes no warranty that the Service will meet your requirements. You understand, acknowledge, and agree that the use of the Service and the Creative is at your own risk. We reserve the right to make changes to the Service or the Creative at any time.
IN NO EVENT SHALL THE SERVICE, ITS OWNERS AND OPERATORS, CORPORATE AFFILIATES, SUCCESSORS OR ASSIGNS, AND THE SERVICE'S ADVERTISERS, SUPPLIERS, OR OPERATIONAL SERVICE PROVIDERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS, ASSUME OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY CLAIMS, DAMAGES OR LOSSES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COMPENSATORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA, LOST PROFITS, LOST SAVINGS, LOSS OF GOOD WILL, OR YOUR USE OR YOUR INABILITY TO USE THE SERVICE, OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO USE THIS SERVICE, OR THE USE AND/OR APPEARANCE OR SOUND OF THE CREATIVE ON THIS SERVICE, ACCESS TO ANY HYPERLINK ON THIS SERVICE, UNAUTHORIZED ACCESS TO OR TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, OR ANY OTHER INTANGIBLE), WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR YOUR BREACHES OF SECTIONS 1 and 3, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO US BY YOU FOR THE ADVERTISEMENT OR SCHEDULE GIVING RISE TO THE CLAIM.
The Agreement must be construed as if all parties jointly wrote it, and is governed by New York law without respect to its conflict of laws provisions. Jurisdiction for any claims arising under this Agreement shall lie exclusively with the state or federal courts within the state of New York. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any notices to us must be sent to: Gridtrax, 242 West 36th Street, 3rd Floor, New York, NY 10018, with a copy to the Legal Department, via first class or air mail or overnight courier, and are deemed given upon receipt. Notice to you may be effected by sending email to the email address specified in your account, or by posting a message to your account interface, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted (for messages in your Services account interface). A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention, and the remaining provisions of the Agreement will remain in full effect. You may not assign any of your rights hereunder and any such attempt is void.
Sections 1, 2, 3, 5, 6, 7 and 8 herein will survive any expiration or termination of this Agreement.
The Section titles in this Agreement are for your convenience only and do not have any legal or contractual effect.