These Standard Terms and Conditions (the "Standard Terms"), along with an Appearance Order must be accepted and agreed to in order for an advertiser ("Customer") to purchase advertising space on The Programmable Logic Jump Station web site ("Jump Station"), owned and maintained by OptiMagic, Inc. ("OptiMagic").
- RIGHT TO REJECT ADVERTISEMENTS OR SITES. OptiMagic reserves the right, in its sole discretion, to refuse to provide advertising services to any web site, or to reject any URL link. Without limiting the foregoing, the following advertisements are prohibited from participating on the OptiMagic web site:
LOCATION OF BANNER. Unless otherwise agreed to in writing by OptiMagic, the placement and location of any banner advertisement shall be within OptiMagic's sole discretion. OptiMagic makes no guarantee as to the location or placement within the web page of the advertiser's banner.
REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other party that Appearance Order, when executed and delivered by such party, will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. Each party acknowledges that the other party makes no representations, warranties or agreements (written or oral) related to the subject matter except as expressly provided for in the Appearance Order and these Standard Terms. Customer represents and warrants that Customer has the right to publish the contents of the advertisement, without infringement of any rights of any third party.
LIMITATION OF LIABILITY. The parties agree that:
- Any advertisement or site that would violate any applicable law, regulation or third party right;
- sites containing pornographic material, sites with links to pornographic sites;
- sites containing adult material, links to adult material, or nudity;
- sites encouraging illegal activity or racism, sites providing instructions or discussions about illegal activities;
- sites that promote or utilize software or services designed to deliver unsolicited e-mail;
- sites with products or advertisements that are offensive or inappropriate; or
- any advertising that OptiMagic determines has resulted or could result in legal liability or adverse publicity to OptiMagic as a result of such advertising being offensive, inaccurate, defamatory, libelous or slanderous or involving potential infringement of third party's intellectual property rights.
- OptiMagic exercises no control and has no responsibility whatsoever over the content or quality of any advertising materials or any related web sites,
- use of OptiMagic's services is at Customer's own risk, and
- this is not a contract for the sale of goods and, therefore, is not subject to the Uniform Commercial Code.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." OPTIMAGIC DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE SERVICES IT IS PROVIDING, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. OptiMagic shall not be liable for any advertisers whose banners appear on the OptiMagic web site, nor the contents of any banner, nor shall OptiMagic be liable for any loss, cost, damage, or expense (including attorney's fees) incurred by Customer in connection with Customer's participation on the OptiMagic web site. OptiMagic makes no guarantees with respect to the services rendered under the Appearance Order and hereunder, and neither OptiMagic nor any of its officers, directors, agents, or Customers shall have any liability as a result of OptiMagic's performance under the Appearance Order and hereunder, including, without limitation, Internet disruption, interrupted service, errors or delays in providing the service, levels of use or impressions, loss of data, failure to provide requested subject categories, failure to meet advertiser's requirements or other injury, damage, or disruption to Customer or Customer's web site. Without limiting the foregoing, OptiMagic's entire liability under, for breach of, arising under, or related to the Appearance Order and hereunder or the services to be provided hereunder or thereunder (whether in tort, contract or any other theory), and Customer's sole remedy, is for OptiMagic, if possible, to either provide the advertising services or refund any amounts paid by Customer under the Appearance Order. In no event shall either party be liable for indirect, exemplary, special, incidental or consequential damages, or costs, including but not limited to, any lost profits or revenues, loss of use or goodwill, or any third party claims, even if such party has been advised of the possibility of such damages.
INDEMNIFICATION. Customer, at its own expense, shall indemnify, defend and hold OptiMagic and its officers, directors, employees, agents, distributors and licensees harmless from and against any judgment, losses, deficiencies, damages, liabilities, costs and expenses (including reasonable attorneys' fees and expenses) incurred in connection with or arising from any claim, suit, action or proceeding (collectively, a "Claim") to the extent the basis of such Claim relates to a breach by Customer under the Appearance Order or these Standard Terms or in connection with claims arising out of publication of any content or information in the Customer's advertisement (including, without limitation, any claim of trademark or copyright infringement, libel, defamation or breach of confidentiality) or web site or any product or service of Customer or any breach of a third party contract.
DEFAULT BY CUSTOMER. OptiMagic shall not be obligated to provide any advertising services to Customer following any failure by Customer to pay any amounts due hereunder or any default by Customer hereunder; provided, however, the termination of OptiMagicís obligation to provide such services shall not relieve Customer from its liability to pay any fees that have accrued with respect to Impressions already delivered by OptiMagic.
To acknowledge agreement by E-mail, please send your acknowledgement to OptiMagic with the words "I agree to OptiMagic's Standard Terms and Conditions" in your message. Please
also include your name and your company's name in your E-mail message.
- Entire Agreement. These Standard Terms and the Appearance Order sets forth the entire understanding between the parties and supersedes prior agreements and representations between the parties, whether written or oral, regarding the subject matter contained herein. All Customers shall be subject to the then current OptiMagic Standard Terms, which Standard Terms may be revised by OptiMagic at any time.
- Assignment. A Customer may not assign or otherwise transfer, whether voluntarily or by operator of law, any rights or obligations under these Standard Terms and the Appearance Order, without the prior written consent of OptiMagic.
- Governing Law; Attorney's Fees; Jury Trial. These Standard Terms and the Appearance Order shall be construed and interpreted according to the laws of the State of California and all disputes arising under these terms shall be heard exclusively in the state courts of California in the county of Santa Cruz or in the federal courts of the Northern District of California. Each party hereby consents to the jurisdiction of such courts. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of the Appearance Order or these Standard Terms, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES WAIVES ANY RIGHT TO TRIAL BY JURY THAT THE PARTIES MAY HAVE IN ANY ACTION OR PROCEEDING IN CONNECTION WITH SUBJECT MATTER CONTAINED HEREIN.
- Waiver/Severability. The waiver by either party of a breach or right under these Standard Terms and the Appearance Order, will not constitute a waiver of any other or subsequent breach or right. If any provision of these Standard Terms or the Appearance Order is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of these Standard Terms and Conditions and the Appearance Order, which will remain in full force and effect.
- Delivery of Ads. OptiMagic will make good faith efforts to begin the impressions on the start date set forth in the Appearance Order. However, Sponsor understands that by the nature of online advertising, the advertising campaign's exact start and end dates and the rate of impressions delivered may vary due to fluctuations in daily traffic.
- Force Majeure. OptiMagic shall not be in default or otherwise liable for any delay in or failure of its performance under these Standard Terms or the Appearance Order where such delay or failure of its performance hereunder arises by reason of any Act of God, or any government or any governmental body, acts of war, the elements, strikes or labor disputes, or other cause beyond the control of OptiMagic.
- Construction. No obligations other than those expressly set forth in these Standard Terms or the Appearance Order shall be binding on OptiMagic. In the event of any inconsistency between the Appearance Order and these Standard Terms, these Standard Terms shall control.
- Refund. OptiMagic will only provide a refund in the event OptiMagic does not advertise your banner ad for any reason. The refund amount is prorated based on the number of 30-day periods that the banner ad appeared divided by the total exposure period (measured in 30-day periods) specified in the Appearance Order multiplied by the price for the total exposure period. Fractions of a 30-day period are rounded down to the next lowest integer value.