ADMINISTRATIVE FLYCAST
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FLYCAST(TM) COMMUNICATIONS
CORPORATION
WEB ADVERTISING SERVICES AGREEMENT
For Sellers
V2.0-Sellers
Company Name ("Seller") Nettaxi Online Communities
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Primary Site(s) URL(s) ▇▇▇.▇▇▇▇▇▇▇.▇▇▇
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Contact Person(s) Name ▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Phone ▇▇▇-▇▇▇-▇▇▇▇
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Email ▇▇@▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇@nettaxi
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Flycast Sales Representative ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Flycast Customer Support
Representative
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This agreement, dated June 3, 1998, describes the entire terms and conditions
for the sale of web advertising impressions on the Flycast Open Network(TM)
between Flycast Communications Corporation ("Flycast") and Nettaxi Online
Communities (the "Seller").
Section 1.0 Definitions
1.1. AdAgent(TM).
The client software provided by Flycast for the purpose of purchasing
Impressions on the Flycast Open Network.
1.2. Ad Spaces.
The web page section(s) on Seller's web site registered with Flycast that
generate Impressions.
1.3. Buyers.
Customers who buy Impressions on the Flycast Open Network.
1.4. Buyer Terms and Conditions.
The Terms and conditions that apply to purchases of Impressions on the Flycast
Open Network. Copies are available from Flycast.
1.5. Default Advertisements.
Advertisements promoting Seller's web site (or Seller's goods or services) that
are displayed in the event there is no qualified Buyer for Impressions on
Seller's Ad Spaces.
1.6. Flycast.
Flycast Communications Corporation, a California corporation.
1.7. Flycast Ad Management System.
The tools and services provided by Flycast to manage web advertising campaigns,
including AdAgent, Ad Reporter, Site Registry, and Site Reporter.
1.8. Flycast Blind Buy Sale.
A transaction on the Flycast Open Network in which the Impression is sold as
part of a pool of Impressions from multiple sites, and the Buyer is unable to
specify web sites or Ad Spaces.
1.9. Flycast Open Network.
The network of web sites on which Buyers can purchase Impressions.
1.10. Flycast Spot Sale.
A transaction on the Flycast Open Network where the Impression is sold pursuant
to a real-time bidding process to the highest bidder that bids above the
Seller's minimum bid price.
1.11. Flycast Upfront Sale.
A transaction on the Flycast Open Network where a fixed number of Impressions
are sold to a specific Buyer (including Flycast) for a fixed, predetermined
price. A Flycast Upfront Sale cannot be canceled by the Seller or by the Buyer.
1.12. Impressions.
Web advertising impressions sold or made available for sale over the Flycast
Open Network.
1.13. Sellers.
Web sites that register Ad Spaces for sale on the Flycast Open Network.
1.14. Seller Status Information.
The Seller's Impression sale parameters with respect to each Ad space, including
the number of Impressions available to be sold on the Flycast Open Network, the
minimum price for the sale of the Impressions, etc.
1.15. Site Registry.
The HTML form(s) on Flycast's web site used by Sellers to register their Ad
Spaces with the Flycast Open Network, and to set and adjust Seller Status
Information.
Section 2.0. Selling Impressions
Section 2.1. General
Seller agrees to make Impressions available for sale on the Flycast Open Network
in the amount, price and Ad Space locations reflected in the Site Registry.
Seller agrees that by participating in the Flycast Open Network, it has made an
offer to sell Impressions at or above the minimum designated price. Flycast
does not represent or warrant that Seller will sell any Impressions through the
Flycast Open Network. Seller agrees that any Impressions otherwise unsold on
the Flycast Open Network will be offered for sale as part of a Flycast Blind Buy
Sale.
Section 2.2. Site Registration and Information
Seller agrees to complete the Site Registry information accurately and
completely, including setting "rate card,* minimum bid,* and Bind Buy" prices
for all of the Ad Spaces available for sale. Seller further agrees to update
Seller Status Information on a monthly basis.
Section 2.3. Fulfillment
Seller understands that Buyers use information about available Impressions on
Seller's site to plan their web media buys. Accordingly, Seller agrees to
provide all the Impressions reflected in the Site Registry for sale over the
Flycast Open Network. In addition, Seller agrees that if it sells Impressions
pursuant to a Flycast Upfront Sale, it will deliver all of the Impressions with
respect to such sale, and that it will provide "make-good" impressions as soon
as practicable in the event of an underdelivery.
Section 2.4. Payment to Seller
Flycast will pay Seller the following amount for Impressions made available for
sale through the Flycast Open Network:
60% of revenues generated from the sale of Impressions on the Seller's
Ad Spaces.
Section 2.5. Payment Terms
Flycast will remit a monthly payment to seller sixty (60) days after the end of
the month in which Impressions are sold through the Flycast Open Network. For
example, Seller will be paid by March 30 for ads placed during the preceding
month of January. A Flycast payment report summarizing the Seller's activity
will accompany payment for the month. Flycast will accrue and hold monthly
payments due to Seller until the aggregate amount due exceeds $200 (or such
lesser amount due Seller in the event Seller terminates its relationship with
Flycast). If Seller is also a buyer, Flycast has the option to offset a payment
by the amount of any balance due Flycast from Seller's purchases of Impressions
on the Flycast Open Network.
Section 2.6. Discrepancies
Seller has thirty (30) days from the receipt of payment to report any
discrepancy or to question the payment. Flycast and Seller will use their best
efforts to resolve any discrepancy or question quickly and fairly. In case of a
discrepancy between any report generated by Flycast's SiteReporter and Flycast's
final billing information, the filling information will control.
Section 2.7. Ad Blocking
Flycast provides Seller an automated procedure for blocking selected advertisers
or advertisements from appearing on their Ad Spaces. Seller is responsible for
utilizing Flycast's ad blocking system in accordance with the procedures set
forth on Flycast's Web site. Seller acknowledges that Flycast's ad blocking
system provides adequate protection against the appearance of unwanted or
inappropriate advertisements or advertisers on Seller's Ad Spaces. SELLER
AGREES THAT NEITHER FLYCAST OR ANY BUYER SHALL BE LIABLE FOR THE CONTENT OF ANY
ADVERTISEMENTS DELIVERED BY FLYCAST ON SELLER'S AD SPACES.
Section 2.8. Impression Pricing
Seller agrees to cooperate with Flycast in pricing Impressions to enable Flycast
to offer Impressions on several sites with content similar to Seller at a single
price or consistent range of prices.
Section 2.9. Minimum Impressions; Term
Seller agrees to make a minimum of 100,000 Impressions available for sale per
month on the Flycast Open Network for at least three (3) months from the date
hereof. This Agreement will automatically renew at the end of the initial term
and will remain in effect unless terminated by either party with 30 day's
notice. Either party may, at its sole option, terminate this Agreement in its
entirety in the event that (i) the other party breaches any of its material
obligations, representations or warranties under this Agreement and fails to
cure such breach within thirty (30) days of receiving notice thereof, (ii) the
other party is acquired by a third party that would reasonably be determined to
be involved in substantial business activities that are directly competitive
with the business of the terminating party, or (iii) the other party institutes
insolvency, receivership or bankruptcy proceeding or any other proceedings for
the settlement of debt, which are not dismissed or resolved in such other
party's favor within sixty (60) days thereafter.
Section 2.10. Reporting
Seller is entitled to use Site Reporter, Flycast's online reporting application.
Flycast may limit Seller's use of Site Reporter pursuant to a reasonable policy
applied objectively to sites participating in the Flycast Open Network.
Section 2.11. Promotional Impressions
Seller agrees to provide three percent (3%) of its unsold Impressions (across
all of the sites sold through the Flycast Open Network) with respect to the Ad
Spaces covered by this contract available to Flycast fee of charge for use in
promoting the Seller and the Flycast Open Network. In addition, Seller agrees
to provide Flycast with reasonable amounts of additional promotion inventory
from time to time in connection with specific programs or promotions.
Section 2.12. Deleted
Section 2.13. Rights Upon Termination
On termination of this Agreement, all of Seller's rights under the AdAgent
License Agreement (attached hereto as Exhibit A). If this Agreement is
terminated for any reason, neither party will be liable to the other because of
such termination for damages for the loss of prospective profits, anticipated
sales, good will, or for expenditures, investments or commitments made in
connection with this Agreement. The termination of this Agreement shall not
relieve either party from its liability to pay any fees that have accrued to the
other party prior to the date of termination. The parties' rights and
obligations under Section 4.2-4 shall survive expiration or termination of this
Agreement.
Section 3.0. Advertising Management Services
Section 3.1. Default Advertising
Subject to the terms and conditions of the AdAgent License Agreement (attached
hereto as Exhibit A). Seller can use Flycast's Ad Management System to manage
Default Advertising. Seller is bound by the AdAgent License Agreement (attached
hereto as Exhibit A). Seller rights under this Section 3.1 are limited to
ten percent (10%) of Seller's inventory made available for sale through the
Flycast Open network, or 20,000 impressions per month, whichever is less.
Section 3.2. Outsourced Ad Management
Seller can use Flycast's Ad Management System to manage web advertising
campaigns originated by Seller on behalf of third-party advertisers appearing on
the Ad Spaces covered by this contract in accordance with the following terms
(which terms override Section 2.4):
- Section 3.2.1. Commission. Flycast is entitled to a commission equal to
$2.00 per thousand Impressions delivered by Seller utilizing the Flycast Ad
Management System to manage ▇▇ ▇▇▇▇▇▇▇▇▇ on the Ad Locations covered by this
contract.
- Section 3.2.2. Billing and Collection. Flycast will invoice Seller for
the commission described in Section 3.2.1, and retains the right to offset any
payment due Seller by the amount of the commission. Seller bears sole
responsibility for billing and collecting payment from advertisers for
advertisements delivered pursuant to this Section 3.2.2.
Section 3.3. Purchasing Impressions
Subject to the terms and conditions of the AdAgent License Agreement (attached
hereto as Exhibit A). Seller can use the Flycast Ad Management System to
purchase Impression on the Flycast Open Network. Seller will be subject to the
Buyer Terms and Conditions with respect to the purchase of Impressions.
Section 4.0. Standard Terms and Conditions
Section 4.1. Programming
Seller will effect all necessary HTML changes with respect to the Ad Spaces as
described in Flycast Site Registry so as to enable Flycast to deliver
Impressions to Buyers in accordance with this Agreement.
Section 4.2. Quality Assurance
Seller will maintain its web site and Ad Spaces in accordance with the highest
industry standards. Seller acknowledges that Flycast has no responsibility to
review the content of its web site(s) or Ad Spaces. Without limiting the
foregoing, Seller represents and warrants that:
- Section 4.2.1. Content Restrictions. Seller's web site(s) and Ad Spaces
shall not contain, or contain links to, content promoting the use of alcohol,
tobacco or illegal substances; nudity, sex, pornography, or adult-oriented
content; expletive or inappropriate language; content promoting illegal
activity, racism, hate, "spam," mail fraud, pyramid schemes, or investment
opportunities or advice not permitted under law; content that is libelous,
defamatory, contrary to public policy, or otherwise unlawful, or any other
content deemed inappropriate by Flycast in its sole discretion.
- Section 4.2.2. Ad Space Location; Limitation. Seller agrees to place
Flycast Ad Spaces in a conspicuous location on pages on its web site(s), either
at the top of the web page, or on the top one-third of an expanded view of the
page on a 640x480 monitor. In addition, Seller agrees that it shall not display
more than one advertisement (whether or not provided by Flycast) on any single
page on which a Flycast Ad Space appears.
- Section 4.2.3. Valid Impressions. Seller shall not to run "robots" or
"spiders" against its web site(s) or use any means to artificially increase the
Impressions available with respect to any Ad Spaces.
- Section 4.2.4. Refresh rates. Seller may utilize "meca refresh banner
rotations" only for pages that have chat, video broadcast, audio broadcast, or
active gaming content. The refresh rates for these rotations must exceed five
(5) minutes.
- Section 4.2.5. Cooperation. Seller will cooperate with any reasonable
Flycast efforts or initiatives relating to auditing sites on the Flycast Open
Network, obtaining enhanced demographic information about visitors to Seller's
site(s), etc.
Seller understands and agrees that a violation of this Section 4.2 may result in
the suspension or termination of active advertising campaigns running on
Seller's Ad Spaces, removal of Seller's web site(s) from the Flycast Open
Network, or any other action deemed necessary in Flycast's sole discretion.
Section 4.3. Proprietary Rights
Seller agrees that it shall not have, nor will it claim, any right, title or
interest in any advertising content delivered by Flycast (other than Seller's
own advertising content). Seller understands that, other than the licenses
granted in the AdAgent License Agreement attached hereto, Flycast grants Seller
no license to Flycast advertising content, the name "Flycast" or any derivative
thereof, or any other trademarks, logos, copyrights, patents, trade secrets, or
other intellectual property rights which are owned or controlled by Flycast and
made available to Seller in any manner.
Section 4.4. Public Relations
Flycast retains the right to refer to Seller as a customer in its web site,
press releases and marketing collateral.
Section 4.5. Representation and Warranties
Each party represents and warrants to the other party that such party has the
full corporate right, power and authority to enter into this Agreement and to
perform the acts required of it hereunder; and the execution of this Agreement
and the performance by such party of its obligations and duties hereunder, do
not and will not violate any agreement to which such party is a party or by
which it is otherwise bound; and when executed and delivered by such party, this
Agreement will constitute the legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms. Such party
acknowledges that the other party makes no representations, warranties or
agreements (written or oral) related to the subject matter except as expressly
provided for in this Agreement.
Section 4.6. Limitation of Liability
The parties agree that: (i) Flycast exercises no control and has no
responsibility whatsoever over the content or quality of any advertising
materials or any AdSpaces, (ii) use of Flycast's services is at Seller's own
risk, and (iii) this is not a contract for the sale of goods and, therefore, is
not subject to the Uniform commercial Code. EXCEPT AS EXPRESSLY PROVIDED
HEREIN, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND FLYCAST
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE
ADVERTISING SERVICES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLED WARRANTIES
ARRISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. Flycast shall not be
liable for any advertisers whose content appear on the Flycast Open Network, nor
the contents of any advertisement, nor shall Flycast be liable for any loss,
cost, damage, or expense (including attorney's fees) incurred by Seller or any
advertiser in connection with an advertiser's or Seller's participation in the
Flycast Open Network. Flycast makes no guarantees with respect to the services
rendered under this Agreement, and neither Flycast nor any of its officers,
directors, agents, Flycast Open Network members or sponsors shall have any
liability as a result of Flycast's performance of this Agreement, including,
without limitation, Internet disruption, interrupted service, errors or delays
in providing the service, levels of use or impressions, loss of data, failure to
provide requested subject categories, failure to meet Seller or advertiser's
requirements, or other injury, damage or disruption to advertiser or
advertiser's web site. Without limiting the foregoing, Flycast's entire
liability under, for breach of, arising under, or related to this Agreement or
the services to be provided hereunder (whether in tort, contract or any other
theory), and Seller's solo remedy is for Flycast, if possible, to provide the
services agreed hereunder or refund any amounts prepaid by Seller related to the
services giving rise to such liability, provided such refund shall not exceed
the aggregate charges for services rendered for the prior six months under this
Agreement that gave rise to such liability. In no event shall Flycast be liable
for indirect, exemplary, special, incidental or consequential damages, or costs,
including but not limited to, any lost profits or revenues, loss of use or
goodwill, or any third party claims, even if such party has been advised of the
possibility of such damages.
Section 4.7. Nondisclosure and Proprietary Information
Seller shall not disclose any of the terms and conditions of the Agreement to
any third party without the express written consent of Flycast. Neither party
shall disclose to any third party the Confidential Information of the other
party and shall not use any such Confidential Information for any purpose other
than the purpose for which it was originally disclosed to the receiving party.
"Confidential Information means any information of a party disclosed to the
other party, which is identified as, or should be reasonably understood to be,
confidential to the disclosing party, including, but not limited to the results
of Seller's sale of Impressions on the Flycast Open Network, know-how, trade
secrets, technical processes and formulas, software, customer lists, unpublished
financial information, business plans, projections, and marketing data.
"Confidential Information" shall not include information that (i) is known to
the receiving party at the time it receives Confidential Information; (ii) has
become publicly known through no wrongful act of the receiving party; (iii) has
been rightfully received by the receiving party from a third party authorized to
make such communication without restriction; (iv) has been approved for release
by written authorization of the disclosing party; or (v) is required by law to
be disclosed.
Section 4.8. Indemnification
Seller, at its own expense, shall indemnify, defend and hold Flycast and its
officers, directors, employees, agents, distributors and licensees harmless from
and against any judgment, losses, deficiencies, damages, liabilities, costs and
expenses (including reasonable attorney's fees and expenses) incurred in
connection with or arising from any claim, suit, action or proceeding
(collectively, a "Claim") to the extend the basis of such Claim relates to a
breach by Seller under this Agreement or in connection with claims arising out
of publication of any content or information published by Seller hereunder
(including, without limitation, any claim of trademark or copyright
infringement, libel, defamation or breach of confidentiality) or any product or
service related to such content or information or any breach of a third party
contract.
Section 4.9. Miscellaneous
a. Independent Contractors. The parties to this Agreement are independent
contractors. Neither party is an agent or partner of the other party. Neither
party shall have any right, power or authority to enter into any agreement for
or on behalf of, or incur any obligation or liability of, or to otherwise bind,
the other party. This Agreement shall not be interpreted or construed to create
an association, agency, joint venture or partnership between the parties or to
impose any liability attributable to such a relationship upon either party.
b. Entire Agreement. This Agreement and the AdAgent License Agreement
attached hereto as Exhibit A sets forth the entire Agreement between the parties
and supersedes prior proposals, agreements, and representations between the
parties, whether written or oral, regarding the subject matter contained herein.
This Agreement may be changed only my mutual agreement of the parties in
writing. This Agreement may be changed only by mutual agreement of the parties
in writing. This Agreement may be executed in any number of counterparts, each
of which shall be an original and all of which shall constitute together but one
and the same document.
c. Assignment. Seller may not assign or otherwise transfer, whether
voluntarily or by operator of law, any rights or obligations under this
Agreement without the prior written consent of Flycast.
d. Governing Law/Notice. This Agreement shall be construed and interpreted
according to the laws of the State of California without reference to conflicts
of law provisions. The parties hereby consent to the exclusive jurisdiction of
the courts of San Francisco County, California. All written notices between the
parties shall be deemed to have been given if personally delivered, sent by
courier or certified, registered or express mail, transmitted by electronic mail
via the Internet (with copy sent by registered or certified airmail) to the
address set forth above (or as otherwise directed in writing). Unless otherwise
provided herein, all notices shall be deemed to have been duly given on: (a) the
date of receipt (or if delivery is refused, the date of such refusal) if
delivered personally, by electronic mail or by courier; or (b) three (3) days
after the date of posting if transmitted by mail.
e. Waiver/Severability. The waiver by either party of a breach or right
under this Agreement will not constitute a waiver or any other or subsequent
breach or right. If any provision of the Agreement is found to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
covered from the remainder of this Agreement, which will remain in full force
and effect.
f. Force Majeure. Flycast shall not be in default or otherwise liable for
any delay in or failure of its performance under this Agreement where such delay
or failure of its performance under this Agreement arises by reason of any Act
of God, or any government or any governmental body, acts of war, the elements,
strikes or labor disputes, or other cause beyond the control of Flycast.
Flycast Communications Corporation
__________________________________
By:_______________________________
Title:____________________________
Flycast Communications Corporation
Seller
__________________________________
By:_______________________________
Title:____________________________
(Company Name):__________________
Exhibit A
AdAgent License Agreement
ONCE YOU DOWNLOAD FLYCASTS SOFTWARE, YOU AND THE COMPANY OR ENTITY THAT YOU
REPRESENT ("YOU") WILL BE BOUND BY THE FOLLOWING LICENSE AGREEMENT
("AGREEMENT").
1. GRANT. Subject to the terms of this Agreement, Flycast Communications
Corporation ("Flycast") hereby grants You a limited, personal nontransferable,
nonsublicensable, royalty-free, nonexclusive license to use the AdAgent software
product that You are about to download in object code form, along with the
documentation that accompanies it ("Software") for managing, displaying, and
placing advertising on the world wide Web. The Software consists of various
components, which are identified by appropriate filenames in the download. You
may copy, distribute, install, and use AdAgent for internal use only. You may
only install and use one copy of the AdAgent and other components of the
Software. You may also copy the Software for archival purposes, provided any
copy must contain all of the original Software's proprietary notices.
2. RESTRICTIONS. You may not, directly or indirectly: modify, translate,
reverse, engineer, decompile, disassemble (except to the extend applicable laws
specifically prohibit such restriction), create derivative works based on, or
otherwise attempt to discover the source code or underlying ideas or algorithms
of the Software; or copy and distribute (except for the purposes set forth
above) rent, lease, or otherwise transfer rights to the Software; use the
Software for timesharing or service bureau purposes, or for performing
comparisons or other "benchmarking" activities, either alone or in connection
with any other software (and you will not publish the results of such
activities); or remove any proprietary notices or labels on the Software. As
between the parties, title, ownership rights, and intellectual property rights
in and to the Software, and any copies or portions thereof, shall remain in
Flycast and its suppliers or licensors. The Software is protected by the
copyright laws of the United States and international copyright treaties.
3. SUPPORT AND UPGRADES. This Agreement does not obligate Flycast to
provide any support or upgrades, patches, enhancements, and fixes (collectively
"Upgrades") for the Software. Notwithstanding the foregoing, any Upgrades that
You may receive become part of the Software and the terms of this Agreement
apply to them.
4. CONTENT. Title, ownership rights, and intellectual property rights in
and to any advertisements, information, text, pictures, images, characters,
sounds, personalities, code (source and object), data, and other materials
("Content") provided by third parties, or accessed through, managed with,
processed with, or otherwise used in connection with the Software is the
property of the applicable owner and may be protected by applicable copyright or
other law. This agreement give You no rights, title, or interest to Content
(including without limitation Content that You post or create suing the
Software). Flycast exercises no screening, editorial, or other control over
Content, and Content may include material that could be deemed distasteful,
misleading, inaccurate, offensive, pornographic or otherwise objectionable. You
hereby agree to indemnify and hold harmless Flycast from any and all damages,
liability, costs, and expenses (including attorney's fees) arising from claims
related to your use of the Content, including, without limitation, infringement,
misappropriation, privacy, security, right of publicity, false advertising,
fraud, consumer protection, and claims that Content is obscene, pornographic,
indecent, or otherwise objectionable.
5. WARRANTY AND DISCLOSURE. FLYCAST PROVIDES THE SOFTWARE AND ANY SERVICES
THAT YOU RECEIVE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND FLYCAST HEREBY
DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE,
ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY
CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
6. LIMITATION OF LIABILITY. You assume the entire risk as to the quality
and performance of the Software. Flycast assumes no liability for the cost of
any service or repair if the Software is defective. Further, You assume the
responsibility of, and any costs or liability associated with, making a
connection (by any means) to the Internet, or other online service, or network
and You understand that some features of the Software will not operate without
such a connection. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT,
CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL FLYCAST OR ITS LICENSORS,
SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER
INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK
STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, DAMAGES
RESULTING FROM DISABLING OF THE SOFTWARE, OR ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSSES. IN NO EVENT WILL FLYCAST BE LIABLE FOR ANY DAMAGES IN EXCESS
OF THE LICENSE FEES PAID IN CONNECTION WITH THE SOFTWARE, EVEN IF FLYCAST SHALL
HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY
OTHER PARTY.
7. TERMINATION. This Agreement will become effective upon the effective
date of the web Advertising Services Agreement between You and Flycast and will
last until terminated under this Section. You may terminate this Agreement and
the license granted herein at any time by destroying or removing from all hard
drives, networks, and other storage media all copies of the Software, and paying
all amounts due to Flycast under the web Advertising Services Agreement.
Flycast may terminate this Agreement and the license granted herein immediately
if You breach any provision of this Agreement. This Agreement will
automatically terminate, without notice from Flycast upon the termination of the
web Advertising Services Agreement between You and Flycast. Upon termination of
the Agreement You agree to destroy or removed from such storage media all copies
of the Software, Sections 2 and 4 through 11 shall survive termination of this
Agreement.
8. EXPORT CONTROLS. You shall comply with all export laws and restrictions
and regulations of the Department of Commerce, the United States Department of
Treasure Office of Foreign Assets Control ("OFAC"), or other United States or
foreign agency or authority, and agree not to export, or allow the export or
re-export of the Software in violation of any such restrictions, laws or
regulations (including, without limitation, export or re-export to destinations
prohibited either in Country Groups Q, S, W, Y or Z country specified in the
then current Supplement No. 1 to Section 770 of the U.S. Export Administration
Regulations (or any successor supplement or regulations), or the OFAC
regulations found at 31 C.F.R. 500 et seq.) By downloading or using the
Software, You are agreeing to the foregoing and You are representing and
warranting that You are not located in, under the control of, or a national or
resident of any restricted country or on any such list.
9. U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication or disclosure of the
Software by the Government is subject to restrictions set forth in subparagraph
(c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFAR
252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer
Software--Restricted Rights at FAR 52.227-19, as applicable, and all other
Federal laws and regulations that protect Flycast's rights in privately
developed computer software.
10. MISCELLANEOUS. This Agreement represents the complete agreement
concerning this license between the parties and supersedes all prior agreements
and representations between them. It may be amended only by a writing executed
by both parties. If any provision of this Agreement is held to be unenforceable
for any reason, such provision shall be reformed only to the extent necessary to
make it enforceable. This Agreement shall be governed by and construed under
California law, without reference to conflict of law provisions.
11. CONFIDENTIALITY. The Software and other technical, business, and
financial information, including, without limitation, all pricing information,
that You receive from Flycast is the confidential information of Flycast
("Confidential Information"). You agree not to disclose or use Confidential
Information for any purpose except the purposes permitted in this Agreement.
Confidential Information shall remain confidential until you can document that
such Confidential Information is generally available to the public. You
acknowledge that a breach of the obligations of this Section will cause
irreparable harm to Flycast, and you hereby consent to Flycast being entitles to
equitable relief (in addition to any other remedies) to enforce the terms of
this section.
BUYERS SELLERS MEMBERS FLYCAST CONTRACT