Terms and Conditions
TERMS AND CONDITIONS FOR
VIP MERCHANT AND ADVERTISING AGREEMENT
1. Agreement.This Merchant and Advertising Agreement (the "Agreement"), is between VIP Savings Network, LLC (“VIP”) and Merchant as those terms are defined herein. This Agreement consists of the order page(s) (the "Order), any properly executed addendums and these Terms and Conditions, as modified from time to time by VIP in the manner provided herein (the “Ts & Cs”).
(a) "Advertising"means, individually and collectively, items specified on the Order and for which a charge is assessed;
(b) "Artwork" means the Advertising, or any portion thereof, including but not limited to, text, graphics, illustrations, symbols, logos and photographs to be published, displayed, distributed or disseminated pursuant to this Agreement;
(c) "Cardholders" means persons or entities that have purchased membership cards from VIP
(d) "Directory" means the local merchant directory and/or internet directory or directories specified on the Order,
(e) "Discount Program" means the discounts and benefits as itemized on Order that Merchant shall extend to Cardholders upon presentation of a current and valid VIP Card;
(f) "Distribution Site" means each of VIP's distribution or fulfillment vendors, each of their associated distribution networks and/or each Internet search engine on which VIP places Advertising;
(g) "Final Date For Changes" is the date so specified on the Order, or if no such date appears or if the Agreement is signed by Merchant after such date, then the third (3rd) day after execution;
(h) "Internet Advertising" means Advertising which appears on the internet (whether on vipsavingsnetwork.com or otherwise) or is otherwise distributed via any electronic method of distribution;
(i) "Internet Directory" means any internet or electronic based directory type service upon which the Advertising will be placed pursuant to the Order, it being understood that VIP generally tracks Internet Directories by geographical location in association with corresponding local merchant directories;
(j) "Issue" means any particular issue of the Directory in which the Advertising appears;
(k) "Issue Date" as to a Directory means the first day of the month/year identified on the cover of that Directory and, as to an Internet Advertising, means the first day upon which the Advertising is initially fulfilled for the Initial Term and the Issue Date of the associated Directory for any Renewal Term;
(l) "Issue Life" means the time between a Directory's Issue Date and the Issue Date of the next succeeding issue of the Directory;
(m) "Limited Inventory Advertising" (also "LIA"), including "General LIA" and "Specialty LIA" designated as such on the Order, means advertising products that are limited in availability and/or quantity, including but not limited to leader ads, and advertising options known as “Weekly Freebies”, “Mega Coupons”, or “Dining for VIP” on Print or Internet Advertising;
(n) "Merchant" means the business, person or other legal entity shown as the Merchant on the face of the Order, its owners and successors who participate in the VIP Card Program by providing benefits and discounts to VIP Card Program Cardholders;
(o)"Preference" means any claim on the part of Merchant to priority and/or preferential treatment with respect to any advertising product sold by VIP, including without limitation, claims of "seniority" and/or LIA related renewal or contingency rights, whether written or otherwise;
(p) "Print Directory Advertising" means advertising (excluding LIA) that appears within a Directory;
(q) "Renew/Cancel Date" means the date by which VIP must receive written notice of Merchant's decision to either renew or cancel LIA, if applicable.
(r) "Terms and Conditions" or "Ts&Cs" means the terms and conditions of this Agreement or as modified from time to time by VIP.
(s) "VIP" means VIP Savings Network, LLC.
(t) "VIP Card means the membership card purchased by Cardholders for the right to use at the business establishments of the Merchants to obtain discounts or benefits itemized in the Discount Program;
(u) "VIP Card Program means the program in which VIP sells membership cards to persons or entities to obtain the benefits and discounts provided by participating Merchants.
(a) Initial Term. This Agreement is effective when the Order page is executed by Merchant; provided, however, that effectiveness remains subject to acceptance/rejection by the VIP as described herein. Unless otherwise specified, the initial term of this Agreement (the "Initial Term") shall be from the effective date through the date specified on the Order page.
(b) Automatic Renewal. Unless otherwise expressly specified in the order, it is Merchant's intention in entering into this Agreement that the Advertising be placed in the issue of the directory specified on the Order and each succeeding issue, until cancelled by Merchant or VIP, or superseded by a subsequent Agreement. With respect to each such succeeding issue, this Agreement shall automatically renew, unless cancelled in the applicable manner provided herein, for the issue life of the succeeding issue (the "Renewal Term"). All services provided during the Renewal Term will be subject to the then-current Ts&Cs, pricing and other terms for the applicable Advertising, copies of which shall either be provided to Merchant or made available on the VIP's official website(s) (such then current terms and conditions being the Ts&Cs for purposes of this Agreement). Unless this Agreement is properly cancelled or otherwise terminated hereunder, and if VIP elects to publish and/or continue to otherwise fulfill the Advertising, Merchant hereby agrees to pay for such Advertising for each billing cycle of the Renewal Term at VIP's then standard rates during such billing cycle for the applicable Advertising, which standard rates may be higher than the rates set forth on the Order.
(c) Cancellation/Renewal Terms.
(i) Merchant may cancel this Agreement, in whole or in part, only by written notice signed by an authorized representative of Merchant sent by "U.S. Certified Mail" to VIP at VIP's address on the Order and mailed return receipt to the attention of "VIP Savings Network, LLC, 4727 Osborne Drive, Ste. 400-B, El Paso, Texas 79922 Advertising & Publishing, ATTN: Cancellation Manager."
(ii) For a particular Print Directory Advertising or Internet Advertising, as to the Initial Term, Merchant must deliver notice of cancellation to VIP on or before the Final Date for Changes specified on the Order for the Directory in which such Advertising product shall be published/fulfilled. If the Agreement is executed or authorized after the Final Date for Changes, or if no Final date for Changes is specified on the Order, Merchant must deliver notice of cancellation to VIP within three (3) days of execution/authorization. Regarding a Renewal Term, with respect to any particular Directory, notice of cancellation must be received on or before the Final Date for Changes applicable to a particular Print Directory and/or the Issue Date for any applicable Internet Directory. Merchant is responsible to obtain the Final Date for Changes for a subsequent issue of a Directory from VIP's Merchant Service Office by calling the number specified on the Order. If Merchant chooses to have any Internet Advertising removed from any site and/or discontinued prior to the end of the Initial Term or Renewal Term, as the case may be, Merchant shall notify VIP in writing and the unpaid balance for the entire Initial Term or Renewal Term will become immediately due and payable.
(iii) For LIA products, as to the issue of the directory specified on the Order, there is no right to cancel. With regard to any subsequent issue of the Directory, notice must be received on or before the Renew/Cancel Date established for the subsequent issue, which date Merchant is responsible to obtain by calling the toll-free number for Sales listed on the Order.
(iv) VIP may cancel and/or reject this Agreement, in whole or in part, at any time and for any reason or no reason as determined by VIP in its sole and absolute discretion, and in such event, this Agreement will remain effective as to any Advertising not canceled or rejected. Voluntary suspension of billing activity by VIP with respect to all or any portion of an Order shall not, absent definitive documentation to the contrary, constitute cancellation or rejection of this Agreement and VIP shall retain the right to enforce the remainder of any applicable Initial and/or Renewal Term and to resume billing when and as it deems appropriate in connection therewith.
(v) VIP may immediately terminate Merchant without giving Merchant any opportunity to cure if VIP, in its sole discretion, believes that Merchant: (1) used the Directory, Distribution Site, Print Directory, Internet Directory, VIP Card in a manner which is improper or unauthorized; (2) compromised the integrity or security of the VIP Card Program; (3) engaged in illegal or inappropriate activities or is the subject of a government complaint or investigation; (4) provided false information to VIP and its Cardholders or others; and/or (5) created a risk of injury or damage to VIP and its Cardholders or others.
(vi) Cancellation shall immediately extinguish any Preference(s) Merchant may claim. For purposes of this extinguishment of Preference(s), VIP shall be entitled to immediately rely upon a Merchant's verbal expression of cancellation, without requirement of written confirmation thereof.
(d) Changes To The Directory(s) and/or Issue Life(s).
(i) If timely notice of cancellation is not received, and if no subsequent Directory serving the same geographic area is published, VIP may, in VIP's discretion, choose to place the Print Directory and/or Limited Inventory Advertising in an alternate Directory serving all or part of the same geographic area, even if the geographic scope is different from the preceding geographic scope, and Merchant will pay for such Advertising at the then existing undiscounted rates for the alternate Directory.
(ii) The Issue Life of any Directory is not fixed. VIP typically prints directories in twelve-month intervals but has the right to extend or reduce the Issue Life for a period of not more than six months, without notice to Merchant. The Issue Life of an Internet Directory may vary upon fulfillment of the applicable Advertising, but will generally be co-terminus with the associated Print Directory and is subject to extension or reduction in the same manner therewith. In the event an Issue Life is extended, the parties agree that the term of this Agreement shall likewise be extended and Merchant agrees to pay additional charges associated with the extended Issue Life at the monthly rate then in effect for the Merchant for the applicable Directory.
4. Responsibilities and Duties of Merchant. The Merchant shall undertake to:
(i) The Merchant shall accord all agreed benefits and discounts services for all VIP’s Cardholders as itemized on the Order and Discount Program.
(ii) Allow VIP to use the Merchant’s name and benefit offer in promotional advertising for the VIP's Card Program;
(iii) Provide the agreed benefits and discounts in the Discount Program to all VIP's Cardholders;
(iv) Provide training to its employees in the handling of VIP Cards upon presentation by Cardholders;
(v) Display VIP Card Program decals at all business entrances to draw the attention of VIP's Cardholders.
(vi) Assure that only valid VIP Cards are accepted by the Merchant;
(vii) In the event of misuse of the VIP card, the Merchant is required to retain the VIP Card and notify VIP as soon as possible of the VIP Card misuse;
(viii) Notify VIP of any updates, changes, and amendments to the Discount Program.
5. Responsibilities and Duties of VIP. VIP shall:
(i) Provide the Merchant with information itemizing the benefits of the VIP Card Program;
(ii) Publish the Merchant's Advertising or Discount Program in the Directories as specified on the Order;
(iii) Provide the Merchant with marketing materials related to the promotion of the VIP Card Program.
6. PROVISION OF ADVERTISING MATERIALS. - Merchant will provide all material for theAdvertising in accordance with VIP’s policies in effect from time to time, including, without limitation, policies governing the content of and specifications for Advertising, the manner of transmission to VIP, and the lead-time prior to publication of the Advertising. VIP will not be required topublish any Advertising that is not received in accordance with such policies. In the event Merchant agrees in writing to have VIP develop creative designsand materials for the Advertising, the material for the Advertising, VIP shall charge a fee to Merchant that shall be determined by VIP at its discretion.
7.- RIGHT TO REJECTADVERTISEMENTS. All Advertising is subject to VIP’sapproval. VIP will have sole discretion to determine the content and format of,and specification for, the Advertising. VIP reserves the right to reject orcancel any Advertising, at any time, for any reason whatsoever (including,without limitation, belief by VIP that such placement may subject VIP tocriminal or civil liability), Notwithstanding anything herein to the contrary,Merchant acknowledges that VIP is acting as a passive conduit for the display,distribution and publishing of the Advertising, and that VIP has no obligationto Me
rchant (and undertakes no responsibility) to review the Advertisingto determine whether such Advertising may result in liability to Merchant orthird parties.
8 PAYMENTS FORADVERTISING.
(a) Thefull amount of all charges represented on the Order shall be assessed onthe Issue Date of any Print Directory Advertising or LIA, and on thefulfillment date of any Internet Advertising. Notwithstanding the foregoing,unless otherwise specified by VIP, Merchant will pay the charges specified onthe Order (plus any applicable taxes) at the times specified on VIP’s invoices. VIP typically bill on a monthly bases, however, VIP may require payment onother that a monthly basis for credit or other reasons. Where, for whateverreason, a particular billing period is not a whole month, VIP may adjust thecharges specified in the monthly Order to account for the shorter period. VIPreserves the right to require partial or full payment in advance as a conditionof publication of fulfillment or to change Merchant a reasonable fee forrequest that exceed our customary services, including, for example, excessivecontent changes, protracted design development or premise visits. Payments aredue on the due date specified on the invoice or, if no payment date isspecified, then thirty days after the date of the invoice. Merchant will payany sales, use, or other local, state, federal, foreign or other taxes orgovernmental fees arising out of or in connection with this Agreement, otherthan taxes based on VIP’s net income, as applicable.
(b) UponMerchant’s failure to pay any invoiced amount when due, VIP may accelerate thebilling and collection of all remaining charges for all Advertising, withoutfurther notice to Merchant, including charges that are separately billed andnot past due. Merchant will be liable to VIP for any returned check fees andany other fees allowed by law, and agree to pay attorneys’ fees and cost thatVIP or its agents incur in collecting any unpaid amounts. VIP may also removeany Advertising, in whole or in part and whether covered by this Agreement orany other Agreement Merchant may have with VIP or any of its affiliates, fromany print or internet/electronic directory or, in the case of Advertisingplaced on Distribution Sites, cause to be removed, Merchant’s Advertising andsuspend VIP’S services hereunder if payment is not received by the due date,Failure to pay when due may also result in the extinguishment of anyPreference(s). Merchant’s prompt payment of any cost that VIP incurs to suspendservices or remove or cause removal of Advertising, or to resume services orreplace or cause replacements of Advertising; will be a condition to VIP’Sresumption of services and, replacement of Advertising. Any suspension ofservices by VIP hereunder shall not, in and of itself, act to cancel orotherwise terminate this Agreement and VIP shall still be entitled to enforcethe remainder of any Initial Term and/or Renewal Term upon the resumption ofservices.
(c) LatePayment Interest Charge. If payment is not made by the due date on VIP’sinvoice and/or this Agreement, Merchant agrees to pay an interest charge of permonth (or the highest lawful rate if it is less) beginning on the billing date,on the past-due amount until paid. Merchant agrees that this interest chargeis reasonable charge to compensate VIP for the inability to use the fundsMerchant has not paid to VIP. NO INTEREST CHARGE APPLIES IF ALL PAYMENTS AREPAID WHEN DUE.
(d) CollectionActivity Fee. If Merchant fails to make payments as specified herein,Merchant agrees to pay reasonable attorney fees and other legal expensesassociated with collection of Merchant’s account(s), and to pay VIP’sreasonable collection cost associated with collection of the amount(s) due.Merchant agrees that VIP collection cost include both internal and externalcost of VIP and that it would be impractical and cost-prohibitive for VIP tocalculate the actual cost associated with collection cost for each Merchant’saccount. Merchant agrees to pay a Collection Activity Fee (“CAF”) in the mountof $25.00 each month if Merchant does not pay VIP the full amount of chargesdue by the invoice due date, as an offset to VIP’s internal and externalaggregate activities based cost for the handling and/or collection of delinquentcharges/accounts. Merchant agrees that de CAF is not an interest charge forthe time value of unpaid money and recovers cost that are different from thecosts recovered by the late payment interest charge described in 8(c). NO CAFAPPLIES IF ALL PAYMENTS ARE PAID WHEN DUE.
(e) Billingfor the Advertising may begin before a Directory is fully distributed and maycontinue after delivery of the next issue of Directory has commenced, untilcomplete.
(f) IfMerchant receives incentives pricing for any Advertising item(s) based on acommitment by Merchant regarding any other Advertising item(s)purchased byMerchant from VIP, including Internet or other advertising purchased under aseparate Agreement and Merchant subsequently cancels or fails to fulfillMerchant’s commitment regarding said other advertising item(s), then saidincentive pricing will revert to, and Merchant will be obligated to pay, thefull undiscounted charge for the Advertising items(s) for which incentivepricing was received.
(g) Alladvertising charges associated with this Agreement are fully due and payable,notwithstanding: any disconnections of telephone service to any telephonenumber appearing in any advertisement/listing; any discontinuance or change oflocation of the telephone service or Merchant’s advertised business; anyfailure on the part of VIP or any of the affiliates to publish/fulfill any freeor complimentary advertising product and/or directory listing; any change of, ortransfer of ownership or any advertised business.
(h) VIPmay create, revise or cancel a VIP discount or promotional offering at any timeprior to the effective date of this Agreement. No discount offered to Merchantobligates VIP to offer any future discount not specifically included in theinitial offer.
9. - MERCHANT’S GENERAL WARRANTIES AND OBLIGATIONS,INCLUDING INDEMNIFICATION.
(a) Merchantexpressly represents and warrants:
(i) thatMerchant is authorized to advertise and display the requested business, productor service.
(ii) thatMerchant is a business not a consumer.
(iii) thatthe content of any Advertising is truthful and not misleading and complies withall applicable laws and licensing requirements,
(iv) thatMerchant itself is in compliance with all laws and licensing requirementrelating in any manner to the goods or services displayed in Merchant’s Advertising,
(v) thatMerchant is authorized to be and is engaged in the business of providing theproducts and/or services corresponding with the heading under which Merchantwishes to advertise;
(vi) Merchantwarrant that Merchant will honor any promise, offer or other statement setforth in the Advertising during the entire life of the Advertising, or until anexpiration date stated in the Advertising, whichever occurs first, and
(vii) Merchantwill provide VIP with all information necessary to publish the Advertising andwill do so in a timely manner.
(b) Merchantis solely responsible to contact Merchant’s local telephone services provider(“LSP”) to verify that Merchant’s telephone service information shown in theAgreement or Order correctly matches the information maintained by Merchant’sLSP, and to return any proof copy(ies), approved and/or corrected asappropriate, on or before the deadline established by VIP.
(C) Asto advertising created by VIP for Merchant, Merchant is responsible to reviewsaid advertising, and confirm that it is accurate , that Merchant has the rightand publish any name, address, trade name, trademark, service mark, picture,likeness, logo, reproduction, endorsement, copyrighted or copyrightable item orother content as included in such advertising.
(d) Withoutlimiting any of VIP’s other rights or remedies, Merchant agrees to notify VIPimmediately in writing at any time that Merchant discovers or suspects that anyof the representations in the Advertising are not true and correct in allrespect.
(e) MERCHANTAGREES TO INDEMNIFY AND HOLD HARMLESS VIP, ITS PARENT(S), AFFILIATES ANDDISTRIBUTION SITES AND THEIR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (AND,WITH RESPECT TO INTERNET ADVERTISING, ANY OF ITS DISTRIBUTION SITES) AGAINSTALL CLAIMS ACTIONS, LOSSES, EXPENSES, DAMAGES COST AND/OR LIABILITIES,INCLUDING ATTORNEY FEES AND OTHER EXPENSES INCURRED IN THE DEFENSE OF ANYCLAIMS, ARISING FROM THIS Agreement, INCLUDING WITHOUT LIMITATION BREACHES OFANY REPRESENTATION AND WARRANTY MADE HEREIN, AND/OR MERCHANT ADVERTISING AND/ORREQUEST FOR ADVERTISING SERVICES, INCLUDING WITHOUT LIMITATION, ANY CLAIMS,SUITS OR PROCEEDING FOR DEFAMATION OR LIBEL, VIOLATION OF RIGHT OF PRIVACY ORPUBLICITY, CRIMINAL INVESTIGATION, INFRINGEMENT OF INTELLECTUAL PROPERTY, FALSEOR DECEPTIVE ADVERTISING OR SALES PRACTICES AND ANY VIRUS, CONTAMINATING ORDESTRUCTIVE FEATURES, CLAIMS THAT THE ADVERTISING INFRINGES ON A THIRD PARTY’STRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, CONTAINS MISREPRESENTATION,AS WELL AS ANY CLAIMS THAT THE ADVERTISING DOES NOT OTHERWISE COMPLY WITH ANYAPPLICABLE LEGAL REQUIREMENTS OR OBLIGATIONS, WHETHER DIRECTLY APPLICABLE TOMERCHANT OR OTHERWISE. (1) MERCHANT’S OBLIGATIONS UNDER THIS SECTION 9 SHALLSURVIVE THE TERMINATION OR CANCELLATION OF THIS Agreement.
10- Intellectual Property.
(a) Asany Artwork or Advertising VIP (or another party on VIP’s behalf) creates forMerchant, whether in whole or in part, and any derivative work that VIP createsfor Merchant’s content, Merchant acknowledges that VIP is an author and assignsto VIP all rights, title and interest in and any independently copyrightablecontribution Merchant might have made to the advertising. VIP may thereforeuse, publish, reproduce, distribute, display publicityy, promote, perform, resize,rearrange, modify and create derivative works of VIP’s Artwork and theAdvertising in which it is used, for publications fulfillment in any of theDirectories, or in any other directory or Advertising or service, whether inprint, Internet, electronic or other format, in perpetuity. Merchant furtheracknowledges that VIP retains all right, title and interest, including thecopyright, in such Advertising and that neither Merchant or VIP intends forsuch advertising to constitute a joint work, in addition, VIP may sell,license or otherwise transfer and interest in VIP’s Artwork without anyaccounting to Merchant. To the extent that Merchant claims any right, title orother interest in and to the copyright in VIP’s Artwork or in the Advertising,Merchant irrevocably assigns this interest to VIP.
(b) Merchantwarrants and represents that it has the right to use, publish, reproduce, distribute,display publicly, promote, perform, resize, rearrange, modify and createderivative works of any Artwork provided by Merchant or in Merchant’s behalffor publication fulfillment in Advertising in any of the Directories, or in anyother directory or advertising or service in whatever format, now or in thefuture, Merchant, for itself and any third party with an interest in suchArtwork, grants Artwork, grants VIP nonexclusive license, including the rightto sublicense, to copy distribute, create derivative works based upon, publiclydisplay, publicly perform, reproduce, promote, perform, resize, rearrange, modifyand otherwise use the Advertising, as well as any trademark, service mark,graphics, Artwork, text or other content Merchant provides to VIP in connectionwith this Agreement in any of the Directories, or in any other directory oradvertising or service, in whatever format, now or in the future, VIP has noobligation to notify Merchants in connection with any use envisioned herein andupon termination of this Agreement, VIP has no obligation to return or restoreany works to Merchant.
(c) IfVIP receives notice that another person or entity contest Merchant’s right touse or display a logo, name, trademark, service mark, or other contentincluding the Advertising, VIP may terminate this Agreement in its entiretyand/or reject, cancel, discontinue or suspend the Advertising, withoutliability, until such time as Merchant has resolved the dispute with the otherparty to VIP’s satisfaction. Suspension of this Agreement or and Advertisingshall not relieve Merchant from the obligation to continue to make payments asinvoiced and a rejection , cancelation, or discontinuance of a portion of theAgreement or Advertising shall not relieve Merchant of the obligation tocontinue payment with respect to the remainder hereof.
(d) Atany time that a Merchant has reason to believe that its right and authority touse any advertising content is terminated or otherwise changes or anyproceeding contesting that right is threatened or begun, Merchant will immediatelyprovide detailed written notice to VIP, to the address on the Order. Receiptto such notice shall not, by itself, create any obligation on the part of VIPand shall not limit or affect any VIP’s other rights or remedies.
(e) Merchantis solely responsible for the protection and/or enforcement of any copyrights,trademarks, service marks, trade names and other intellectual property ownedand claimed, wholly or in part, by Merchant or which Merchant is authorized touse or display.
(g) Exceptas otherwise provided herein, VIP owns the exclusive copyright in and to eachDirectory and all other intellectual property in or on each directory.
(h) Merchant’sobligation under this Section 10 shall survive the termination or cancellationof this Agreement.
(a) GENERALDISCLAIMER. VIP MAKES NO WARRANTY OF PERFORMANCE TO MERCHANT AND, INFACT, DISCLAIMS ANY SUCH WARRANTY. MERCHANT REPRESENT THAT MERCHANT HAS NOTRELIED UPON ANY SUCH WARRANTY AND ASSUMES ALL RISK CONCERNING THEFUNCTIONALITY, PERFORMANCE OR RESULTS OF THE ADVERTISING. EXCEPT AS EXPRESSLYAGREED TO BY THE PARTIES AS PART OF THIS Agreement, NEITHER VIP NOR ANYDISTRIBUTION SITE MAKES ANY REPRESENTATIONS WARRANTIES OR GUARANTEES TOMERCHANT OF ANY KIND, EITHER EXPRESSED OR IMPLIED (INCLUDING WITHOUTLIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, TITLE, NONINFRINGEMENT OR OTHER WARRANTIES ARISING BY USAGE OF TRADE,COURSE OF DEALING OR COURSE OF PERFORMANCE), REGARDING THE FUNCTIONALITY,PERFORMANCE OR RESULTS OF THE ADVERTISEMENT OR ADVERTISING, DISTRIBUTION SITES,LIKED SITES, ANY SITE VIP MAY CREATE FOR MERCHANT, OR OTHERWISE UNDER ORRELATED TO THIS Agreement.
(b) ProofCopy VIP is obligated to provide and does not warrant it will provide Merchantwith a proof copy (or “ad copy”) of the advertising. Merchant’s obligation topay is not contingent upon Merchant’s receipt or approval of the proof copy,regardless of whether a proof copy is requested for the advertising.
(c) Distributionof Directories. VIP shall distribute the Print Directories to itsCardholders in the distribution scope of the Directory; VIP may change thedistribution scope of the Directory without notice to Advertiser. VIP doesnot warrant the number of Cardholders that will receive or use the Directory orthat will view any heading or the Advertising orwarrant the manner or timing of delivery.
(d) InternetDesign/Distribution. Merchant acknowledges that it is not possible toavoid placing Merchants advertisements on web sites that display adult content,have adult-oriented domain names that are primarily intended as gambling sites,or which otherwise be objectionable to Merchant and Merchant expressly agreesthat is nor event shall VIP or any of its affiliates or Distributions Siteshave any liability to Merchant of any type of nature as a result of any suchplacement or any other such placement that may be offensive to Merchant. VIP orany Distribution Site may position Merchant Advertising on any page within theappropriate sites, in any position upon such page, in any sequence and inassociation with any classified heading or keyword(s) VIP or any DistributionSited deems appropriate unless otherwise specifically noted in the Order. VIPand/or the Distribution Sites may redesign or modify the organization,structure and/or “look and feel” of VIP’s respective Web Sites, Advertising andpublished set of headings and directories at any time and without notice; VIPmay discontinue or add Distribution Sites at any time in VIP’s sole andabsolute discretion. VIP or any Distribution Site may position Merchant’sadvertisement on any page within the appropriate sites, in any position uponsuch page, in any sequence and in association with any classified heading orkeyword(s) VIP or Distribution Sites deem appropriate unless otherwisespecifically noted in the Order. The transmission of any unsolicitedcommercial e-mail messages through VIP’s services is strictly prohibitedwithout the prior consent of the recipient. Merchant acknowledges that neitherVIP not the Distribution Sites generate the content upon a site whereMerchant’s advertising may be fulfilled and that neither VIP not heDistribution Site are responsible for such content.
(e) InternetDistribution and/or Interruption. VIP hereby expressly disclaim anywarranty regarding the suitability, merchantability, character or fitness ofany particular action which may be delivered to Merchant in connection with anyInternet Distribution VIP does not guarantee that the action (1) will be frompotential Merchants or Merchant and/or (2) will be of any benefit or value toMerchant. Neither VIP nor any Distribution Site makes any representation,warranty or guarantee with respect to traffic or usage statistics regardingAction on VIP’s site or on any Distribution Site or the levels of impression(where “impressions” means each occurrence of a display of an advertisement),cost per click, or click-through rates or the quality, results or conversionrate for any Advertising. Neither VIP nor any of its affiliates of DistributionSites will have any liability to Merchant and Merchant will remain responsiblefor all moneys owed to VIP should there be a interruption in VIP’S Web Site orservice, in any vendors web site or service and/or in any third party site orservice or other interruption in VIP’s services hereunder for any period oftime, although VIP may, in VIP’s sole and absolute discretion, issue credits orextend the term of this Agreement in the event of interruption lasting severaldays or longer.
(f) Preferences/Exclusivity. Except as may expressly agreed to and properly authorized by VIP in the Order, VIPdoes not grant Merchant any Preference hereunder. VIP does not guarantee thatAdvertising will be in any specific sequence or position in a Directory. VIPhas the right to place advertising in any position in a Directory (includingwithin Heading or pages therein) and to introduce new advertising products thatmay result in a change in the position of Advertising in a Directory. AlthoughVIP may assign certain items of Advertising an internally generated point valueand/or loyalty date (sometimes “seniority date”) on the Order, such assignmentsare internal to VIP and do no confer any rights upon Merchant. VIP does notguarantee exclusivity in a business category for any Advertising. VIP maypublish advertising on any other party in any Directory at any time.
(g) TelephoneNumber(s). Any change in or to the listed telephone number associated withAdvertising, including changes to the classification and/or (non)publicationstatus of a number, will not, be itself, have any effect on either the InitialTerm or Renewal Term and Merchant acknowledges that such original listed numberwill continue to be reflected in the Advertising in the same way until Merchanthas caused VIP to discontinue such Advertising in the manner specified herein.
12. LIMITATION OF LIABILITY.
(a) Forpurpose of this Section 12, the term “VIP” corporate parent(s) and thedirectors, officers, agents and employees thereof. With respect to InternetAdvertising, “VIP” shall include any Distribution Site or other vendor. VIP’SACCEPTANCE OF THIS Agreement AND THE RATES CHARGED FOR THE ADVERTISING ANDOTHER SERVICES ARE BASED UPON VIP’S LIMITATION OF LIABILITY AS SENT OUT IN THISSECTION 12 AND UPON MERCHANT’S AGREEMENT TO ALL OTHER TERMS AND CONDITION OFTHE Agreement.
(b) Merchantagrees that error, omissions or delays will sometimes occur in processing arequest for advertising or in the publication, fulfillment or delivery ofadvertising, and that VIP cannot and does not guarantee that Advertising willbe published without error, omission or delay by VIP, due to the possibility ofsuch errors, omission or delay occurring. VIP has no obligation togive Merchant or any third party notice of such error, omissions or to correctthem by recalling or reprinting directories, or by performing supplementaldelivery.
(c) Inno event shall VIP or any its Distribution Sites or other vendors be liable toMerchant, Whether for an error or omission or otherwise or be deemed to be inbreach for any failure, delay or interruption of performance that was caused bya third party, resulted from information supplies by a third party; or wascaused by force majeure, including any act of God, labor stoppage (whetherlegal or illegal) governmental authority, terrorist act, labor or material shortageor other act or condition beyond VIP’s reasonable control. Merchant’s paymentobligations hereunder shall continue during any force majeure event.
(d) UNDERNO CIRCUMSTANCES WILL VIP BE LIABLE FOR SPECIAL INDIRECT INCIDENTAL, CONSEQUENTIAL,PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATINGTO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE LOST OF GOODWILL, WHETHER AS ARESULT OF ERRORS OR OMISSIONS, THE REJECTION OR REMOVAL OF ANY ADVERTISINGCONTENT, ANY DELAY IN DISPLAYING OR VIP’S FAILURE TO DISPLAY CONTENT, OR VIP’SFAILURE TO PERFORM SERVICES.
(e) VIP’smaximum liability to Merchant for any error, omission or other default islimited as stated herein, regardless of whether Merchant alleges claims againstVIP in Agreement or in tort, or other basis in law or equity. IN THE EVENT OFAN ERROR, OMISSION OR OTHER DEFAULT IN THE PUBLICATION AND/OR FULFILLMENT OF ANITEM OF ADVERTISING, VIP SHALL BE LIABLE TO MERCHANT FOR THE AMOUNT (ASDETERMINED BY VIP) BY WHICH THE VALUE OF THE ITEM ADVERTISING WAS DECREASED, INNO INSTANCE TO EXCEED THE TOTAL AMOUNT MERCHANT ACTUALLY PAID FOR THE ITEM ORADVERTISING, VIP WILL NOT BE LIABLE FOR ANY ERROR, OMISSION OR OTHERDEFAULT IN DELIVERY OR AS TO ITEMS FOR WHICH NO CHARGE IS ASSESSED.
(f) Withrespect to Internet Advertising, if VIP breaches any obligation hereunder tofulfill any such Advertising, VIP will make commercially reasonable efforts tofulfill such Advertising at a later date on the same or substitute site orinternet search engine or otherwise reasonable to cure such breach. THEFOREGOING CONSTITUTES VIP’S SOLE OBLIGATION AND MERCHANT’S SOLE AND EXCLUSIVEREMEDY FOR ANY BREACH BY VIP OF THIS Agreement (EITHER DIRECTLY OR THROUGH AFAILURE OF PERFORMANCE BY ANY DISTRIBUTION SITE) WITH RESPECT TO INTERNETADVERTISING.
(g) Merchantacknowledges and agrees that the provisions of this Agreement that limitliability, disclaims warranties, or exclude consequential damages or otherdamages or remedies are essential terms of this Agreement and are fundamentalto the parties, understanding regarding allocation of risk. Accordingly suchprevisions shall be severable and independent of any other provisions of thisAgreement and shall be enforced regardless of any breach hereof or other occurrenceor conditions relating in any way to this Agreement or any Advertising. Withoutlimiting the generality of the foregoing. MERCHANT AGREES THAT ALL LIMITATIONOF LIABILITY, DISCLAIMERS OF WARRANTIES, AND EXCLUSIONS OF CONSEQUENTIALDAMAGES OR OTHER DAMAGES OR REMEDIES SHALL REMAIN FULL VALID EFFECTIVE ANDENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCESTHAT CAUSE ANY EXCLUSIVE REMEDY UNDER THIS Agreement TO FAIL OF THIS ESSENTIALPURPOSE. The limitation contained in this section 13 apply regardless of theform of action, including actions in Agreement, tort (including negligence) andstrict liability.
(h) Anyclaim arising out of an error or omission in publication and/or fulfillment ofAdvertising or any claim arising out of the publication and/or fulfillment of aDirectory or Directories must be made in writing to VIP within six (6) monthsof publication of the Directory of Directories and/or the fulfillment of theAdvertising whichever is sooner, Otherwise such claim shall be deemed waived.
13. SPECIAL PROVISIONS FORLIMITED INVENTORY ADVERTISING.
(a) Ifindividually designated on the Order as “Right of Renewal Eligible” withrespect to a particular LIA, Merchant shall have to right to renew such LIA forthe next succeeding Directory issue provided that Merchant signs a newAgreement on or before the Renew/Cancel Date for such succeeding Directory atthe rate(s) established by VIP and that such right is nor otherwise cancelledor extinguished hereunder. Merchant is responsible to obtain the Renew/CancelDate for a subsequent issue of the Directory from VIP’s Merchant Service Officeby calling the number specified on the Order. If nor individually designated asRight of Renewal Eligible, the right of renewal does not apply.
(b) VIPhas the right to cancel Merchant’s right to renew, without notice and withoutfurther obligations to Merchant if, among other reasons: Merchant does notagree to pay the rate(s), established by VIP; Merchant has been past due as toany item of Advertising for sixty (60) days or more; Merchant owes past dueadvertising charges as of the Renew/Cancel Date; VIP concludes that Merchant isreducing its annual advertising program with VIP, Merchant’s LIA does notcomply with VIP’s policies, specifications and guidelines; or VIP discontinuesthe LIA.
(c) VIPhas no responsibility to remind Merchant of any impending Renew/Cancel Date orto initiate contact with Merchant is respect to any renewal or cancelation.
(d) IfMerchant has agreed to purchase LIA on a pending availability (“contingency”) basis,VIP will duly consider awarding the LIA to Merchant in the event the LIAbecomes available. However, in such event VIP is not obligated to award the LIAto Merchant and may, in VIP sole and absolute discretion, award the LIA toanother Merchant holding a contingency agreement in respect thereto. Merchantunderstand and agrees that VIP may accept more than one contingency agreementfor the same item of LIA and that, in awarding the LIA, VIP will consider,among other factors, the rate Merchant has agreed to pay for the LIA, asspecified herein. In the event VIP awards the LIA to Merchant, Merchant agreesto pay that rate. Merchant’s right to renew the LIA, if awarded, or to cancelMerchant’s contingency agreement regarding the LIA shall be the same as in thecase of LIA purchase on the non-contingency basis.
14. MISCELLANEOUS(INTEGRATION/MODIFICATION/CONSTRUCTION/JURISDICTION/ETC). As materialcondition to VIP’s willingness to enter into this Agreement, Merchant agrees tothe following:
(a) ThisAgreement, including the Order, these Ts&Cs, any properly executedaddendum(s) and advertising proof copy(s), if any constitute the entireagreement between VIP and Merchant concerning the Advertising and supersedesall prior agreement between the parties. This Agreement cannot be modified in awriting signed by both parties provided, however, that VIP may unilaterallymodify these Ts&Cs with respect to any Renewal Terms by providing Merchantwith a copy of the new Ts&Cs prior renewal. ONLY A GENERAL MANAGER OR THATPOSITION’S SUCCESSOR TITLE, MAY SIGN ANY SUCH MODIFICATION ON BEHALF OF VIP.
(b) Otherthan as expressly provided in Section 14(a), no oral or written representationmade by VIP’s sales representation or other employee, purporting to modify thisAgreement, is binding on VIP. Moreover, Merchant confirms that no suchrepresentation has been relied upon by Merchant in entering into thisAgreement.
(c) Anyaction or proceeding brought by Merchant under or relating to this Agreementshall be brought in a state of federal court located in El Paso County, Texas,and Merchant hereby irrevocably submits to the personal jurisdiction of andirrevocably consents to venue in such court for purposes of any such action orproceeding. Any claims against VIP arising from this Agreement shall beadjudicated on an individual basis, and shall not be consolidated in anyproceeding with any claim or controversy by any party. This Agreement will begoverned by and construed in accordance with the laws of the State of Texas inaccordance with this section 14(c). In any event, this Agreement will beconstrued without giving effect to the applicable state’s conflicts of lawprinciples.
(d) VIPhas the sole and absolute right and discretion to operate its business in amanner it chooses, including but not limited to the right to determine and/orchange the name, look, content, hearing, sequence of hearings, design,publishing policies, specifications and guidelines, printing, publication anddistribution (including Issue, Life and delivery period) of each of theDirectories, or any other directory of other advertising product or service, inwhatever format, now or in the future. VIP has the right to reject Advertisingthat does not comply with its publishing standards and guidelines, Instead ofrejecting Advertising in its entirety, VIP may, but is not required to, changea portion of the Advertising with or without notice to Merchant, to resolve aspecification and standards conflict. VIP does not warrant to Merchant thatadvertising of other Merchants will comply with such publishing standards andguidelines. VIP is not obligated to publish any advertising that VIP, in itssole and absolute discretion deems unacceptable.
(e) Merchantsrepresents and acknowledges that Merchant is entering into this Agreement toobtain the Advertising for Merchants own benefit and not for the benefit or onbehalf of any third party, including, but not limited to, any of Merchant’s shareholders,partners, owners, agents or affiliates, however, each Distribution Site is anintended third-party beneficiary of Merchant’s obligations hereunder thatrelate to Advertising and Merchant expressly agree that each may independentlyenforce each obligation directly against Merchant.
(f) Merchantmay not resell, assign, transfer or delegate any of Merchant rights, duties orobligations without VIP’s prior consent, which VIP may grant or withhold in theexercise of VIP’s sole and absolute discretion; in the event VIP gives suchconsent, the assignee must, without any reservation, assume all of Merchantsrights, duties and obligations. Moreover, Merchant is the sole beneficial ownerof the Advertising purchased under this Agreement and has not and will notresell it or any interest in it to any third party. Any attempts to resell,assign, transfer or delegate such rights , duties or obligations without priorwritten consent shall constitute a breach of this Agreement and shall be of noforce or effect. VIP shall have the right to sub Agreement performance of VIP’sobligations hereunder or to assign or otherwise transfer this Agreement or anyof VIP’s rights, obligations or duties hereunder to any person or entity at anytime.
(g) Merchantwill not represent to any third party that VIP approves or endorses any productor service of Merchant.
(h) Merchantwaives all provisions of state and federal so-called “Do-Not-Call”,“Do-Not-E-mail”, “Do-Not-Fax”, laws in respect to VIP placing telephone calls,e-mails and faxes to Merchant and agrees to accept such phone calls, faxes,e-mails and other communication from VIP or VIP’s agents related to VIP’sservices including future services. Merchant will provide contact telephonenumbers, fax numbers, and e-mail addresses, if any, to VIP upon request. Alltelephone conversations and/or electronic communication between Merchant andVIP may be monitored and/or recorded and Merchant hereby expressly consents tosuch monitoring and recordation.
(i) Ifany provision of this Agreement shall be held to be invalid, illegal,unenforceable or in conflict with the law of any jurisdiction, the validity,legality and enforceability of the remaining provisions shall not in any way beaffected or impaired.
(j) Thefailure of VIP to insist upon strict adherence to any term of this Agreement onany occasion shall not be considered a waiver thereof. Any waiver by VIP mustbe in writing and, unless otherwise stated, shall be strictly limited to thecircumstances explicitly waived and shall not deprive VIP of the right toinsist upon strict adherence to the term waived in any and all othercircumstances or to insist upon strict adherence to any other term of thisAgreement.
(k) This Agreement may be signed in counterparts and by facsimile. All signed copies areduplicate originals, equally admissible in evidence.