This agreement (the “Agreement”) is made by and between Darkside Productions, Inc., a California corporation (“Darkside”) and the person or entity accepting this Agreement (“Advertiser”) as of the date set on which such acceptance occurs.
W I T N E S S E T H:
WHEREAS, Darkside may be or is engaged in, among other things, the publication of adult entertainer information, advertisements, and content on one or more owned or not owned, or affiliated, via contract or otherwise, websites, portals, networks, and other paper and electronic outlets including, without limitation, www.eros.com and www.eros-guide.com (collectively, the “Darkside Network”);
WHEREAS, if Advertiser is an individual, Advertiser wishes to promote and advertise Advertiser’s own website, Advertiser’s own social networking site(s), if permitted and applicable, or personal services by having photographs, descriptions, text and other content and information relating to Advertiser or such website or personal services posted on one or more of the outlets on the Darkside Network and elsewhere, whether through the classified listings, banners, and/or links; and
WHEREAS, if Advertiser is third party such as an agency, business or corporation (hereinafter referred to as “Companies”), Advertiser operates an adult entertainment service (or represents adult entertainers) and desires to submit photographs, descriptions, text and other content and information about the adult entertainers whom Agency employs or represents for posting on one or more of the outlets on the Darkside Network and elsewhere, whether through the classified listings, banners, and/or links; and
WHEREAS, subject to Advertiser’s strict compliance with the terms and conditions of this Agreement, Advertiser may submit and post Advertiser’s supplied images and content on one or more of the outlets on the Darkside Network;
NOW THEREFORE, in consideration of the mutual promises and agreements hereunder contained and for good and valuable consideration, the adequacy and sufficiency of which is acknowledged, the parties, each intending to be legally bound hereby, do promise and agree as follows:
Important! This Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §7001, et seq. (E-SIGN Act). You manifest your agreement to this Agreement by any act demonstrating your assent thereto, including typing your name or initials into a signature line provided by Darkside, and/or clicking any button containing the words “I agree” or similar syntax. You may submit a paper copy of this transaction and print this form for your personal records. You have the right to withdraw your consent to use the E-Sign Act by emailing us at firstname.lastname@example.org. Your consent to use the E-Sign Act is limited to providing the information on this form. Access to this electronic record requires a simple browser program such as Internet Explorer and a computer.Posting of Content. Subject to payment of all fees and Advertiser’s strict compliance with Darkside’s policies and procedures and this Agreement, Advertiser may submit and post its Content (which means any of its content, materials, information, visual images, photos, video, graphics, text material, biographical and contact information) on one or more of the outlets on the Darkside Network strictly in accordance with the following:
1.1 Advertiser warrants and agrees that all Content submitted and/or posted by Advertiser shall have been produced in accordance with all applicable provisions of the Child Protection Restoration and Penalties Enhancement Act of 1990, as such act may be amended (the “Child Protection Act”) and are fully compliant with all requirements set forth at 18 U.S.C.§ 2257 et seq. and 28 CFR Part 75 et seq., as amended, (“Section 2257”) as well as all other applicable Federal, State, local, and Foreign Jurisdiction laws and regulations.
1.2 Advertiser further warrants and agrees that all Content submitted and/or posted is exempt from Section 2257 obligations. If such content is deemed not to be exempt from Section 2257, then Advertiser is solely responsible for the keeping of all records required by Section 2257 or as requested by Darkside. Nothing in this paragraph shall be interpreted as allowing depictions covered by Section 2257. If demanded by Darkside, Advertiser shall promptly provide Darkside with the full legal name of its Records Custodian, and a copy of any and all age records required by Section 2257, relating to content posted on one or more outlets on the Darkside Network. It is the intent of Advertiser and Darkside that the Darkside Network shall serve solely as a venue for the independent electronic exhibition of the Content and therefore Advertiser agrees that Darkside shall not be required to comply with any of the obligations of Section 2257 with respect to any visual Content submitted and/or posted by Advertiser. In addition, if Advertiser resides in a jurisdiction other than the United States (the “Foreign Jurisdiction”), or is submitting Content from a Foreign Jurisdiction, Advertiser shall keep all records as may be required under the laws of such Foreign Jurisdiction, in addition to any other obligations imposed hereunder.
1.3 Advertiser bears full and sole responsibility for the production, publication, and posting of the Content. Advertiser shall notify Darkside within one business day of first posting of any corrections, changes or deletions necessary thereto. No refunds or credits (which include credits, adjustments, coupons, “eros dollars”, and the like) are provided by Darkside and none should be expected by Advertiser.
(a) However, to the extent Darkside does provide a refund, Darkside, at its sole discretion, will either (i) if Advertiser used a credit card for payment, Darkside will issue a credit back to such credit card or (ii) Darkside will issue a refund check which will be mailed to the Advertiser of record at such Advertiser’s address on record. Such refund check must be presented for payment to a financial institution within ninety (90) days or such check (and the refund amount) will be cancelled and forfeited and no replacement check will be provided. To the extent Darkside does provide or post a credit to Advertiser’s account or has provided a credit in the past, in each case, for any reason whatsoever, such credit must be used no later than either one hundred eighty (180) days of being posted to the Advertiser’s account or one hundred eighty (180) days from the Effective Date of this Agreement, whichever occurs last, or it will be cancelled and forfeited and no replacement will be provided. Any overpayment will be posted as a credit and handled in accordance with this paragraph.
(b) Advertiser bears full and sole responsibility for ensuring that each payment is appropriately and adequately marked such that Darkside is able to apply such payment to Advertiser’s account and advertisement. Advertiser must contact Darkside promptly if Advertiser believes that such Advertiser’s payment has not been applied correctly. If Darkside is unable to apply a payment within ninety (90) days after its receipt, such payment is forfeited, becomes the property of Darkside, and will not be refunded.
(c) If the parties agree that Advertiser will pay for advertisements based on a variable fee model such as impressions, clicks, exposure, conversions, and the like (eg., banner ads), Advertiser must pay Darkside a non-refundable retainer fee in advance. At the end of a reporting period, as determined by Darkside in its sole discretion, Darkside will submit to Advertiser a report documenting the calculation of the advertising fee and such fee will be deducted from the retainer amount. Darkside’s records, files, statistics, and reports will be the only basis for the calculation of the advertising fee, and are not subject to audit. Any questions concerning such calculation must be submitted within five (5) business days or such fee calculation will be deemed final. The parties acknowledge and agree that a variable fee model as described above is a common method for calculating an advertising fee between independent internet businesses and does not mean and does not imply that Darkside owns, controls, or has any influence over Advertiser’s business. Advertiser has sole and complete ownership and control over its business.
(d) Advertiser acknowledges and agrees that Advertiser’s financial institution or vendor may impose a fee on Advertiser as a result of Advertiser paying its advertising or service fees to Darkside using such financial institution or vendor’s credit card or other payment method. Advertiser is advised to understand such fees in advance as Advertiser is solely responsible for payment of such fees.
1.4 Advertiser is solely liable for any of the Content provided through any link included on one or more outlets on the Darkside Network and for any technical malfunctions, errors or other problems caused by such link. Advertiser specifically indemnifies and holds the Darkside Group (which means Darkside, its owners, officers and directors, successors, assigns, affiliates, agents and licensees, and, in all cases, their respective owners, officers and directors, successors, assigns, affiliates, agents, and licensees) harmless for any claims, debts or allegations relating to any site linked to one or more outlets on the Darkside Network by the Advertiser. Advertiser further warrants that it will not provide a link to any other site besides a direct link from the Darkside Network to its own web site.
1.5 Advertiser is solely responsible for any Content submitted to Darkside on Advertiser’s behalf by third parties, such as photographers or other delegates of Advertiser and all provisions of this Agreement shall apply to such Content. Advertiser warrants and represents that it owns and retains all necessary rights to display all Content submitted to Darkside in accordance with this Agreement, including, without limitation, all necessary model releases, copyright licenses, assignments, publicity rights and the like. Advertiser specifically indemnifies and holds the Darkside Group harmless for any claims, debts or allegations relating to any Content it submits and/or posts pursuant to this Agreement.
1.6 Advertiser may be provided online access to its account. Advertiser acknowledges and agrees that such account may be used solely to enable the purposes set forth in this Agreement including any uses necessary to effectuate the intent thereof. Advertiser will safeguard its password and other log-in information in accordance with industry standards. Advertiser remains solely responsible and liable for the Content in such account regardless of any assistance that Darkside may provide Advertiser with respect to such account (e.g., loading or transferring Content into the account) as permitted under this Agreement.
2. Grant of License Rights.
2.1 Advertiser hereby grants Darkside a non-exclusive royalty free license to use, display, copy, publish, post, exhibit, broadcast, transmit, communicate, perform, distribute, and disseminate on the Darkside Network any Content submitted by Advertiser to Darkside, including any derivative works based on, or compilation including, such Content, for the purposes set forth in this Agreement including any uses necessary to effectuate the intent thereof. Advertiser hereby grants Darkside the right, in Darkside’ sole discretion, to process and/or make changes such as deletions to the Content in order for such Content to comply with all applicable laws, rules, and regulations (collectively, “Laws”) and Darkside policies and procedures, and to deter third party intellectual property (eg., copyright) infringement. Advertiser understands and hereby consents and agrees that Darkside may enable Content viewers and others to create and/or post comments, ratings, reviews and the like (collectively, “Viewer Comments”) about such Advertiser on one or more owned or affiliated websites. Advertiser expressly releases the Darkside Group from any and all liability arising in connection with the Viewer Comments or Darkside’s use of the Content, including, without limitation, liability arising from any blurring, distortion, alteration, or optical illusion that may occur.
2.2 Notwithstanding any provision hereunder to the contrary, Darkside shall have no obligation to enforce Advertiser’s copyrights or other intellectual property rights associated with the Content submitted and/or posted. Advertiser acknowledges that intellectual property theft is rampant on the Internet, and that Content may be stolen, copied or otherwise infringed by third parties over which Darkside has no control. Should any such infringement occur, Advertiser shall bear the sole obligation of enforcing Advertiser’s intellectual property rights, should it desire to do so. Darkside retains the right to enforce its own copyrights and other intellectual property rights associated with the Darkside Network and related works. Advertiser will, at all times, reasonably cooperate with Darkside and its counsel in respect of any suspected infringement or suit for infringement, including, without limitation, testifying, and by making available any records, papers, information, and the like when reasonably requested by Darkside.
2.3 Darkside is not required or obligated to pay Advertiser any monetary compensation for the license rights that Advertiser has granted to Darkside hereunder, and Advertiser agrees that the submission and/or posting of the Content on one or more of the outlets on the Darkside Network constitute adequate and sufficient consideration for the grant of said rights.
2.4 The duration of the license rights granted hereunder by Advertiser to Darkside shall be for an unlimited period, except that said license rights may be terminated, at any time, upon ten (10) days’ written notification of termination. After effective termination of license rights by Advertiser, Darkside shall remove any Content from the Darkside Network. Darkside shall not be required to return any Content to Advertiser that Advertiser has submitted to Darkside.
2.5 All license rights granted to Darkside hereunder shall be royalty free, fully assignable, transferable, and sublicenseable by Darkside, in its sole discretion.
2.6 Advertiser may designate a third party to act on Advertiser’s behalf by executing an Advertiser Delegation Agreement. Advertiser acknowledges that Advertiser is fully responsible for the actions of a designated third-party on Advertiser’s behalf. Advertiser acknowledges that execution of an Advertiser Delegation Agreement does not release Advertiser from the terms of this Agreement and such Advertiser is jointly and severally liable for all actions of any delegate.
3. Representations, Warranties, Covenants, and Indemnity by Advertiser. Advertiser hereby represents, warrants, and covenants to the Darkside Group as follows:
3.1 That Advertiser owns or possesses the legal authority to transfer or grant to Darkside any license or license rights referred to in this Agreement such as those rights regarding the Content necessary or required to permit the posting of the Content on one or more outlets on the Darkside Network, including without limitation, all copyright, trademark and trade name releases, and model releases of all persons appearing in said Content sufficient to permit the legal use of their names and likeness, including waivers of all necessary rights of publicity, commercial exploitation and privacy.
3.2 That Advertiser has made no other agreements, obligations, commitments or legal encumbrances that might prevent or interfere with the rights and license that Advertiser has granted to Darkside hereunder or that might prevent Darkside from freely using the Content as provided in this Agreement.
3.3 The following representation is applicable only to Advertisers who are individuals or to agencies who represent Advertisers: That the Content is wholly original and has not been copied in whole or in part from any other work, advertisement, picture or source; the visual images contained in the Content are neither fake nor “stock” photography, and that any photograph of a person depicted in the Content is a true and accurate representation of the person depicted and available for engagement.
3.4 That all persons depicted in any pictorial representation in the Content that Advertiser has submitted to Darkside were adults over the age of eighteen (18) years of age (or older, if the age of adult status is greater than 18 in the jurisdiction where the persons were photographed), at the time that said persons were photographed, in connection with the creation or production of the Content.
3.5 The following representation is applicable only to Advertisers who are individuals or to agencies who represent Advertisers: all photographs of individuals contained in the Content are photographs of an adult entertainer who the Agency actually presently employs and/or represents; should such individual no longer be associated with the Agency, Agency shall notify Darkside within one business day, and shall make such alterations to any posted Content to reflect any such change in association.
3.6 That there are no depictions or portrayals of any performer, model or other person in any Content submitted by Advertiser that, in any manner, directly or indirectly communicates, suggests or implies that any such person is a person under the age of eighteen (18) years or is otherwise a minor.
3.7 That any personal identification and/or age verification documentation of the persons depicted in the Content that Advertiser has presented to Darkside is valid, authentic and real; that the information contained therein is true and accurate; and that said documentation was issued by the authority of an appropriate and valid government agency of the person whose name appears on the documentation.
3.8 That Advertiser has and maintains valid, authentic, and real documentation of the persons depicted in the Content that Advertiser has presented to Darkside demonstrating that such persons were adults over the age of eighteen (18) years of age (or older, if the age of adult status is greater than 18 in the jurisdiction where the persons were photographed) when the Content depicting such persons was created.
3.9 That no claim has been made against Advertiser in relation to the Content or otherwise, and that Advertiser knows of no claim that the Content infringes the intellectual property rights or violates the rights in any other work and/or of any person, film, or corporation whatsoever; that the Content is not in the public domain and enjoys and will enjoy, either statutory or (to the extent it may exist) common law copyright protection in the United States and all countries adhering to the Berne and Universal Copyright Conventions.
3.10 That all obligations with respect to the Content, including, without limitation, all salaries, royalties, present and future license fees, service charges and the like, if any, have heretofore been fully paid.
3.11 That the Content: (a) is not illegal or contrary to Law; (b) does not promote or link to illegal activities; (c) does not promote or link to violence contrary to Law; (d) is not harassing, defamatory, hateful, abusive, libelous, or obscene; (e) does not link to websites that contain content that is illegal, defamatory, hateful, abusive, libelous, or obscene; (f) does not involve depictions of actual or simulated sexual activity; (g) does not display the genitals or pubic area; (h) is exempt from Section 2257; and (i) has not at any time been the subject of any prosecution, investigation or civil action by any party or governmental agency. Darkside reserves the right to delete or remove any Content that it believes to be illegal, obscene, offensive or in violation of this Agreement or its policies and procedures. Advertiser waives any and all claims relating to such removal.
3.12 That nothing in the Content constitutes an offer to engage in unlawful conduct or behavior, a solicitation or meeting to engage in unlawful conduct or behavior, or a communication relating to unlawful conduct or behavior of any kind, in all cases, with respect to all applicable Laws. Such Content is strictly prohibited and posting same will result in termination of Advertiser’s account with Darkside.
3.13 That if Advertiser is conducting a business that is described or featured in the Content submitted to Darkside by Advertiser or that is on Advertiser’s website or Advertiser’s own social networking site, that said business complies with all Laws such as in the United States and any country, state, county, and municipality in which it operates, and that Advertiser has obtained all necessary licenses, permits and authorizations to engage in such business from all applicable agencies and authorities.
3.14 To the extent an Advertiser advertises on www.erosads.com, that Advertiser warrants that they have read, understands, agrees to, and shall fully abide by Darkside’s then current operational policies and procedures as they appear at www.erosads.com. The Advertiser also agrees that they do not and will not send unsolicited bulk mail, junk, spam email or any other material which contains viruses, worms, “Trojan horses”, or other destructive feature.
3.15 That Advertiser shall defend, indemnify and hold harmless the Darkside Group from and against any action, suit, claim, judgments, penalties, losses, damages, costs, charges, including reasonable attorney’s fees, and other losses whatsoever which may be obtained or imposed by reason of the breach of any representation, warranty, covenant, or agreement or a misrepresentation made by Advertiser hereunder or any claim that any of the Content submitted by Advertiser to Darkside, or posted by Advertiser, infringes any intellectual property rights or another rights of any third party on account of the use of the Content by Darkside.
4. Limitation of Liability for Submitted Content and Traffic.
4.1 Advertiser agrees that the Darkside Group shall not be responsible or liable in any way or to any degree for the loss or damage to any Content supplied or submitted by Advertiser to Darkside. Advertiser expressly acknowledges that Advertiser is only supplying copies of the Content to Darkside.
4.2 Advertiser agrees that the Darkside Group shall not be responsible or liable for the acts or omissions of any users that contact Advertiser or visit Advertiser’s websites via the Darkside Network or otherwise (“Traffic”). Such Traffic comes AS-IS without any warranties of any kind whether express or implied, including, without limitation, warranties of merchantability, fitness for a particular purpose or quality. Advertiser is responsible for ensuring that such Traffic agrees to Advertiser’s terms and conditions and if such Traffic violates any such terms and conditions, Advertiser agrees not to hold the Darkside Group liable or responsible.
5. Disclaimer of Warranties/Assumption of Risk; Limitation of Liabilities.
5.1 DISCLAIMER OF WARRANTIES/ASSUMPTION OF THE RISK. ADVERTISER EXPRESSLY AGREES THAT ITS USE OF THE SERVICES IS AT ADVERTISER’S SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. THE DARKSIDE GROUP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PROVIDED BY LAW. THE DARKSIDE GROUP MAKES NO WARRANTY THAT THE SERVICES WILL MEET ADVERTISER’S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES THE DARKSIDE GROUP MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, THE VIEWERS OR USERS OF ITS WEBSITES, THE TRAFFIC, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. ADVERTISER UNDERSTANDS AND AGREES THAT ANY USE IT MAKES OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT ADVERTISER’S OWN DISCRETION AND RISK, AND THAT ADVERTISER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
5.2 LIMITATION OF LIABILITIES. ADVERTISER UNDERSTANDS AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE DARKSIDE GROUP BE LIABLE FOR ANY DAMAGES WHATSOEVER TO ADVERTISER OR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM AGENCY’S RIGHTS (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND OTHER SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) RELATED TO, BASED UPON, OR ARISING OUT OF THIS AGREEMENT, THE SERVICES PROVIDED BY DARKSIDE, OR THE USE OF SOFTWARE, HARDWARE OR TELECOMMUNICATION FACILITIES BY DARKSIDE IN PROVIDING SERVICES TO ADVERTISER, EVEN IF DARKSIDE HAS BEEN ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES. ADVERTISER ACKNOWLEDGES THAT THE FOREGOING SENTENCE REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT, THAT SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES, AND THAT THE ECONOMIC OR OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION. IN ANY CASE, THE DARKSIDE GROUP’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT IN THE AGGREGATE SHALL BE LIMITED IN THE AGGREGATE TO A TOTAL OF NO MORE THAN ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY.
6. Darkside Functioning as ISP.
6.1 Advertiser agrees that Advertiser is the creator and producer of its Content and is solely responsible for any Content that is posted on one or more of the outlets on the Darkside Network, and accepts all obligations associated with the Content as described elsewhere in this Agreement.
6.2 The parties acknowledge and agree that Darkside acts as a facilitator of communication for third parties. Darkside does not produce, design, or otherwise provide any content or advertising consulting services to its advertisers. As such, the parties acknowledge and agree that Darkside shall be deemed to be an Internet Service Provider (“ISP”) as that term is defined in the Digital Millennium Copyright Act (“DMCA”) and shall also be deemed to be an Interactive Computer Service as that term is used in the Communications Decency Act. Nothing contained hereunder shall be interpreted as a waiver of rights in this regard. Advertiser shall give notice and comply with the notification procedures of the DMCA and agree that Darkside will have and shall fully benefit from the safe harbor provisions set forth in the DMCA regarding ISPs, along with the liability limitations, Good Samaritan defense and other provisions pertaining to Interactive Computer Services set forth in 47 U.S.C. § 230 (c) et seq., the records keeping and labeling compliance exemptions contained in 18 U.S.C. §2257(a)(2)(B)(iii) & (iv), and all similar notice and other provisions limiting or otherwise insulating the liability of ISPs and Interactive Computer Services pursuant to the statutory or decisional law of the United States, any state or territory thereof, or any jurisdiction’s laws that may apply in which Advertiser or Advertiser’s assigns elect to bring any claim against the Darkside Group or any Darkside’ assigns or sub-licensees of rights granted to Darkside hereunder.
7. Miscellaneous Provisions.
7.1 Except for credit card information, all Content and other information provided by Advertiser to Darkside is deemed to be not confidential. Notwithstanding anything to the contrary in this Agreement, Darkside may, in its sole discretion, respond to reasonable requests for Advertiser information, whether formal or informal. Darkside shall have no obligation to resist or oppose such requests, or notify Advertiser of such requests, before providing any responsive information.
7.2 Each party acknowledges and agrees that it has fully read and understands this Agreement and has had the opportunity to seek legal counsel of its choice. This Agreement contains the entire agreement between Advertiser and Darkside regarding the subject matter hereunder (ie, the posting of Content on one or more outlets on the Darkside Network). This Agreement supersedes all prior written and oral understandings, writings, and representations and may only be amended upon notice by Darkside. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. This Agreement may not be transferred or assigned by Advertiser.
7.3 Advertiser agrees that in case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included.
7.4 Advertiser agrees that for purposes of construction, this Agreement shall be deemed to have been drafted by both Advertiser and Darkside. Any and all ambiguities and/or inconsistencies shall not be construed in favor of or against either party hereto.
7.5 Advertiser agrees that in any legal action arising out of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs, including attorneys fees on appeal.
7.6 The parties agree that this Agreement shall be governed by and construed under the laws of the State of North Carolina and the United States as applied to agreements between North Carolina state residents entered into and to be performed within the State of North Carolina, except as governed by Federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Except with respect to claims of infringement or misappropriation of a party’s intellectual property rights or with respect to any claim for injunctive or equitable relief (together, “Dispute Exclusions”), any dispute or claim arising under or with respect to this Agreement that is incapable of informal resolution will be resolved by binding arbitration in accordance with the then-existing Streamlined Arbitration Rules and Procedures of JAMS. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Atlanta, Georgia, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of these Terms and Conditions; and shall be bound by governing and applicable law. The arbitrator must be a member in good standing of a state bar and have the ability to sign an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts, as well as the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. The decision or award of the arbitrator shall be final and binding upon the parties. Any arbitral award may be entered as a judgment or order in any court of competent jurisdiction THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
7.7 No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
7.8 Other than Advertiser’s obligation to pay fees when due, neither party will be held liable for, or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence, including, without limitation, acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, net congestion, or any failure of a computer, server or software, including Y2K errors or omissions. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
7.9 The relationship between Darkside and Advertiser under this Agreement is that of independent contractors and neither shall be, nor represent themselves to be, a partner, franchiser, franchisee, broker, employee, servant, agent, or representative of the other for any purpose whatsoever. No party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another party or to bind another in any manner or thing whatsoever.
7.10 Either party shall be entitled to terminate this Agreement for cause immediately upon written notice to the other party. Either party may terminate this Agreement for its convenience upon ten (10) days notice to the other except that Advertiser may only terminate this Agreement if Advertiser does not have any Content published on one or more outlets on the Darkside Network. Upon termination, the relationship of the parties shall cease. No content provided by Advertiser shall be returned upon termination.
7.11 Notwithstanding anything to the contrary hereunder, Advertiser agrees to pay Darkside the amounts owed to Darkside for all rights granted to Advertiser hereunder including, without limitation, the right to have Advertiser Content posted on the Guide through the Web Site. To the extent that a payment schedule based on impressions, hits, conversions or any other metric based on the Web Site operations, Darkside’ records will govern and control. Subject to the preceding, to the extent of any inconsistency between Darkside’ records and Advertiser’s records, Advertiser may raise such matters to Darkside and Darkside will respond to such requests. In no event, will Advertiser have any right to audit or inspect Darkside’ records and Advertiser agrees that it may raise any issues with Darkside only within 30 days of receipt of Darkside’ invoice. If payment terms are not specified, payment is due upon receipt by Advertiser of Darkside’ invoice.
7.12 All notices (eg., under Section 2.4 or Section 7.10) to Darkside hereunder must be sent to the General Counsel of Darkside at email@example.com.
7.13 For avoidance of doubt, to the extent an indemnification or release is provided in favor of or for the benefit of Darkside, such indemnification or release shall extend to the Darkside Group.
7.14 Sections 1.1, 1.2, 1.4, 1.5, 2.2, 2.3, and Sections 3 through 7, and all Advertiser’s representations, warranties, and indemnification obligations shall survive termination or expiration of this Agreement for any reason.
7.15 This Agreement is intended to be governed by the Electronic Signatures Act (E-SIGN Act”). By submitting the acceptance form Advertiser thereby affixes his or her electronic signature to this Agreement, and thereby manifests assent to all terms contained hereunder.
Important! Notwithstanding anything to the contrary in this Agreement or elsewhere, Darkside always reserves the right in its sole discretion to request ID’s, request photos for verification purposes, verify the age of the advertisers, verify the age of the advertisers featured in any photos at the time the photos were taken, reject Content, change pricing and/or the pricing model, and/or change advertising categories and policies with respect to such categories. To the extent Advertiser does not agree with changes to the pricing or pricing model or service options, Advertiser may terminate this Agreement and not place any future advertisements.