DATATRAC ADVERTISING AGREEMENT
CAREFULLY READ THIS AGREEMENT. YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY SUBMITTING AN “ADVERTSING ORDER FORM” OR, AS APPLICABLE, BY SUBMITTING PAYMENT IN RESPONSE TO AN INVOICE FOR ADVERTISING FROM DATATRAC. IF AT ANY TIME YOU ARE NOT IN COMPLIANCE WITH THE TERMS OF THIS AGREEMENT, YOUR ADVERTISEMENTS MAY NOT BE DISPAYED ON A DATATRAC WEB SITE. `
This Datatrac Advertising Agreement ("Agreement") is made by and between Datatrac Corporation, a Wisconsin company ("Datatrac"), and the entity identified as the Advertiser in the Advertiser Order Form and any renewal notice thereof ("Advertiser").
Advertiser hereby agrees to purchase advertising space from Datatrac, a Wisconsin corporation ("Datatrac"), under the terms and conditions of this Datatrac Advertising Agreement, the Advertising Order Form and the Advertising Insertion Order. Advertiser understands that the Advertising Order Form is a binding offer to purchase advertising from Datatrac under the terms and conditions of the Agreement. The Advertising Insertion Order provides instructions for displaying the Advertisement and may change from time to time. The Advertising Order Form and the Advertising Insertion Order are incorporated herein as part of this Agreement. The Agreement, Advertising Order Form(s) and the Advertising Insertion Agreement(s) may be references collectively herein as the Advertising Agreements.
This Agreement and the initial term shall be effective as of the date the Advertising Order Form is executed or submitted online ("Effective Date"). In the event of a conflict between the Advertising Order Form, Advertising Insertion Order and this Agreement, the Advertising Insertion Order will control. Datatrac expressly rejects any additional or different terms, including but not limited to terms added or appended to the Agreement unless agreed to in writing by Datatrac and Advertiser.
In consideration of the mutual covenants contained herein and other valuable consideration, the parties agree as follows:
- DEFINITIONS.
"Advertising Period" means the period commencing from the Start Date and indicated on the Advertising Insertion Form, including each incremental period thereafter, during which the Advertisement receives Placement.
"Advertisement" means the one or more graphic files supplied by the Advertiser to be stored on a Datatrac Web Server that displays the Advertisement on a Datatrac Web Site and can be selected by a user as a Link. See Advertising Specifications at https://solutions.datatrac.net/adspace for specifications and samples of the Advertisement to be provided by Advertiser pursuant to this Agreement.
“Advertisement Results” means the user statistics, number of times an Advertisement is viewed or displayed (“Hits” or “Impressions”) or otherwise accessed by a viewer or browser (“Click-throughs”) and/or any sales numbers or revenue generated by Advertiser from the Advertisement.
“Datatrac Web Server” means any server used to host an Advertisment or DataTrac Web Site.
“Datatrac Web Site” means any web site hosted by Datatrac on which the Advertisement is displayed.
"DataTrac Web Site Page" means an HTML document residing on a Datatrac Web Site that may contain text, images, or other on-line elements.
"Link" means a request for information from a server other than the Datatrac Web Server.
"Placement" means the location of one or more Advertisements displayed on a Datatrac Web Site.
"Start Date" means the first day Datatrac’s Web Server will display the Advertisement.
- PURCHASE OF ADVERTISING. Advertiser hereby agrees to purchase the advertising space requested and defined in the Advertising Agreements upon the terms and conditions herein.
- PLACEMENT OF ADVERTISEMENT. Upon acceptance of the Advertisement by Datatrac, Advertiser will receive Placement on a Datatrac Web Site as defined in the Advertising Agreements. Final positioning of the Advertisement on a Datatrac Web Site Page is at the discretion of Datatrac, except where an arrangement for a specified position is otherwise acknowledged by Datatrac in writing or identified herein.
- START DATE. Subject to Datatrac’s discretion as to the acceptance and timing of entries, reservations for a specific Start Date are made by Datatrac on a first-come, first- served basis, following receipt of the Advertising Agreements. If the Start Date requested by Advertiser is full, Datatrac will reserve a spot for Advertiser’s Advertisement on the first available Start Date following the requested date and the Start Date will be adjusted accordingly.
- RATES. Rates are set forth in the Advertising Order Form, and may be modified in the Advertising Insertion Order.
- BILLING & PAYMENT. The period billed is equal to the Advertising Period. Payment must be received as indicated in the Purchase Order before Placement of the Advertisement. Thereafter, Advertiser shall be billed in advance in increments equal to the Advertising Period as indicated in the Advertising Agreements. Accounts are due and payable upon receipt and become past due on the 30th day following invoice date. A service charge of 1.5% per month may be assessed on overdue balances.
- PROVISION OF ADVERTISING MATERIALS. Advertiser will provide all material for the Advertisement, including but not limited to, Links, files, graphic art and advertising content, in accordance with Datatrac’s policies and technical specifications as provided at https://solutions.datatrac.net/adspace and/or as otherwise provided to Advertiser from time to time.
- CHANGES. Advertiser may request changes to the content of an Advertisement at any time. Such changes will be charged at Datatrac’s standard rate per occurrence as specified in the Advertising Agreements or as otherwise provided to Advertiser from time to time. All Advertisement changes will be subject to Datatrac’s Right to Refuse Advertising as defined in Paragraph 9 herein. All changes requested by Advertiser shall require ten (10) business days’ prior notice. Datatrac reserves the right to revise its web sites, policies, technical specifications or rates in its sole discretion at any time without any prior notice. Datatrac will not make any changes to the Advertisement, Placement or rates that will materially affect the Advertiser’s current Advertising Period. Changes should be documented in subsequent Advertising Insertion Orders and related exhibits.
- RIGHT TO REFUSE ADVERTISING. All contents and changes of any Advertisement are subject to Datatrac’s approval in Datatrac’s sole discretion. Datatrac reserves the right without liability, to reject, omit, exclude, or cancel any Advertisement for any reason at anytime, with or without notice to the Advertiser, and whether or not such Advertisement was previously acknowledged, accepted or posted on a Datatrac Web Site. Advertiser shall provide Datatrac with access to any material that users can Link through the Advertisement.
- NO GUARANTEED ADVERTISEMENT RESULTS. DATATRAC MAKES NO GUARANTEE OR REPRESENTATION THAT THE ADVERTISEMENT RESULTS, INCLUDING HITS, IMPRESSIONS, CLICK-THROUGHS, SALES FROM ADVERTISEMENTS, USAGE STATISTICS OR OTHER ADVERTISEMENT RESULTS, WILL BE EQUAL TO ANY NUMBERS PUBLISHED OR REPRESENTED AT ANY GIVEN TIME. DATATRAC SHALL NOT BE HELD LIABLE FOR ANY CLAIMS AS THEY RELATE TO ADVERTISING RESULTS. DATATRAC PROVIDES ADVERTISERS WITH HISTORICAL AVERAGE USAGE STATISTICS ONLY AS A COURTESY TO THE ADVERTISERS.
- TRUTH IN ADVERTISING / INDEMNIFICATION FOR LIABILITY. Advertiser is solely responsible for any legal liability arising out of or relating to (1) the Advertisement, and/or (2) any material to which users can Link through the Advertisement, and/or (3) any products sold through the Advertisement. Advertiser represents and warrants that the Advertisement and Link comply with Datatrac’s advertising standards as defined herein or as provided to Advertiser from time to time; and that it holds the necessary rights to permit the use of the Advertisement and Link by Datatrac for the purpose of this Agreement; and that the use, reproduction, distribution, or transmission of the Advertisement will not violate any laws or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity. Advertiser agrees to indemnify Datatrac and to hold Datatrac harmless from any and all liability, loss, damages, claims, or causes of action, including reasonable legal fees and expenses that may be incurred by Datatrac, arising out of or related to Advertiser’s breach of this Paragraph 11 or any other terms of this Agreement.
- LIMITATION ON LIABILITY. Liability for any error or omission caused by Datatrac related to the publishing of Advertiser’s Advertisement is limited to a credit equal to the cost of the space actually occupied while the error or omission was present. No allowance, however, will be granted for an error or omission that does not materially affect the value of the Advertisement or that is beyond the reasonable control of Datatrac. To qualify for an adjustment, any error or omission must be reported within 15 days of the occurrence of the event of error or omission. There is no liability under any circumstances for any incidental or consequential damages of any kind.
- TERM. The term of this Agreement shall be for one year and shall automatically renew unless otherwise cancelled as indicated in Paragraph 14 herein, Cancellation and Termination.
- CANCELLATION AND TERMINATION. All Advertisements must run consecutively for the Advertising Period. Cancellation may occur for the subsequent Advertising Period by either party without penalty by notifying the other party 30 days in advance of a new Advertising Period. No cancellations or refunds will be allowed during the current Advertising Period. This Agreement may be canceled immediately by either party for cause or any breach of contract herein. Paragraphs 11 and 12 shall survive for two years from the date of any cancellation or termination of this contract.
- TRADEMARKS & INTELLECTUAL PROPERTY. Advertiser retains all right, title and interest in and to the Advertisement, its trademarks, service marks, tradenames and other intellectual property worldwide. Datatrac retains all right, title and interest in and to the DataTrac Web Sites, its trademarks, service marks, tradenames and other intellectual property worldwide. Each party herein grants a non-exclusive limited license to use its trademarks, service marks and tradenames only in connection with placing Links to and advertising on behalf of Advertiser and performing its other advertising and promotional obligations set forth herein. All such use shall be in accordance with each parties policies regarding trademark usage as provided to the other from time to time.
- RELATIONSHIP: Datatrac and Advertiser shall each act as independent contractors. Neither party shall exercise control over the activities and operations of the other party. Datatrac and Advertiser shall each conduct all of its business in its own name and as it deems fit, provided it is not in derogation of the other’s interests. Neither party shall engage in any conduct inconsistent with its status as an independent contractor, have authority to bind the other with respect to any agreement or other commitment with any third party, nor enter into any commitment on behalf of the other, except as expressly provided for in this Agreement.
- FORCE MAJUERE. Datatrac is not liable for delays in performance and/or nonperformance resulting from any condition beyond the control of Datatrac.
- ASSIGNMENT. Advertiser may not assign this Agreement, in whole or in part, without Datatrac’s written consent. Any attempt to assign this Agreement without such consent will be null and void.
- SEVERABILITY: In the event that any term or provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable or invalid in whole or in part for any reason, the remaining provisions of this Agreement shall remain in full force and effect.
- NOTICES: Any notices between the parties shall be by a physical or electronic writing. The Parties shall send all notices by e-mail or first class mail, postage prepaid. Notices shall be effective upon receipt. Datatrac shall send notices to Advertiser at the e-mail and/or physical address provided on the Advertiser Order Form. Advertiser shall send notices in writing to the following address: Datatrac, Official Notices, 6666 Odana Road, Madison, Wisconsin, 53719 and to the email address are certification@datatrac.net.
- GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of Wisconsin.
- ENTIRE AGREEMENT. The Advertising Agreements and all exhibits are the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. The terms and conditions of this Agreement will prevail over any contrary or inconsistent terms in any purchase orders or proposals.
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