1. GENERAL UNDERTAKING. Host Provider, Speed Tuners Network, operates sites on the Internet's World Wide Web known as DSMtuners.com, WRXtuners.com and EVOtuners.net, which are configured to support Customer advertising. A Customer Web site (the "Advertised Site") can purchase space on the Host Provider's sites to display graphical banners, buttons, or text-based descriptions of its Advertised Site (the "Advertisement"), and a hypertext markup language ("HTML") pointer or "hot link", which when clicked by a computer mouse, will transport an internet visitor from the Host Site to the Advertised Site. Customer wishes to commission the Host Provider's sites to run its Advertisement on the Host Site during the Term and at the price stated at the time of the purchase ("Prices & Payment"). A submission is irrevocable for seven (7) days and shall be deemed accepted only if and when Speed Tuners Network places the Advertisement on its Site(s).
2. SUBMISSION OF ADVERTISEMENT. Customer will submit its Advertisement to Speed Tuners Network according to its published Banner Specifications, which are available online at http://www.speedtuners.com/sponsors-banners.php (the "Specifications"). The Submission should comply with the Advertisement requirements located therein so that Speed Tuners Network can create the hotlink after prepayment has been received. Speed Tuners Network may, in its sole judgment, reject any Advertisement that is not in proper format, any Advertised Site that is not functional, or that which Speed Tuners Network considers unsuitable or inappropriate for linking to the Host Site. If Speed Tuners Network rejects the Customer's Advertisement and Customer is unable or unwilling to comply with Speed Tuners Network's submission guidelines, then this Agreement shall be deemed terminated and Customer's sole remedy shall be to obtain a refund of any prepaid advertising fees.
3. Prices & Payment.
(a) Advertising Fee. The Advertising Fee will be agreed upon beforehand by Speed Tuners Network and the Customer and compensates Speed Tuners Network for setting up, placing and operating the Customer's Advertisement on Speed Tuners Network Sites during the Term. The Advertising Fee is submitted with Attachment A, "Specifications/Advertisement Order Insertion Form". Stated prices will remain in effect during the stated Term. All charges are based on monthly, quarterly or yearly calendar periods.
(b) Payment. Credit card payment and Paypal payments are preferred. International Money Orders in US funds, company or personal checks (if drawn on US bank accounts), cashier's checks, certified checks, traveler's checks, money orders, or wire transfer payments payable to Chris Raymond (Speed Tuners Network) are also accepted. All payments must be received prior to the first day of each quarterly advertising cycle. Speed Tuners Network will assess an additional $20 fee (to offset bank conversion fees) for payments received in NON US funds.
Speed Tuners Network will not resubmit checks returned for non sufficient funds or stop payment. Returned checks will be subject to a $25 returned check fee and full payment of balance due will be required within ten (10) days.
(c) Late Payments & Taxes. The Advertising Fee is prepaid, in arrears. Services may be suspended or terminated on one (1) days' notice if Customer fails to pay any amount when due. Any fraudulent payment shall be subject to costs of collection, including reasonable legal fees. Customer shall upon demand pay, indemnify and hold Speed Tuners Network harmless from all sales, use, gross receipts, GST, value-added, personal property or other tax or levy (including interest and penalties) imposed on the services and deliverables provided hereunder, other than taxes based on the net income or profits of Speed Tuners Network.
4. OPERATIONAL MATTERS. Speed Tuners Network reserves the right in its sole discretion to determine all matters concerning the configuration of hardware, software, telecommunications, system components, advertising categories, positioning of Customer's Advertisement, and other administrative or operational issues for Speed Tuners Network as it deems necessary or helpful in the normal course of business.
5. PROPRIETARY RIGHTS. Each party (or identified third party) owns its respective Web site and all material and content contained in it. Nothing herein grants the other party any right, title or license in a party's intellectual property rights, except only that Customer grants Speed Tuners Network the limited, nonexclusive license to setup and display the Customer's Advertisement (including any trademarks and servicemarks included with it) on Speed Tuners Network Sites during the Term of this Agreement. Upon termination, Speed Tuners Network shall deactivate the Customer's Advertisement. Nothing herein grants Customer any right to publish or use any trademark, servicemark, logo or name of Speed Tuners Network Sites in any advertisement, sales promotion or press release without Speed Tuners Network's prior written consent. Nothing herein imposes any confidentiality restriction on either party.
6. NONSOLICITATION. During the Term, and for a period of one (1) year thereafter, Customer agrees not to hire, solicit nor attempt to solicit the services of any employee or subcontractor of Speed Tuners Network without the prior written consent of Speed Tuners Network.
7. FORCE MAJEURE. Speed Tuners Network is excused from any failure or delay in performance of responsibilities otherwise imposed by this Agreement for any cause beyond its reasonable control. Such causes include, without limitation, fires, floods, storms, earthquakes, acts of war, terrorism, civil disturbances, disruption of telecommunications, transportation, utilities or necessary supplies, governmental action, computer viruses and incompatible or defective equipment, software or services not supplied by Speed Tuners Network. Nothing herein enlarges any warranty or diminishes any disclaimer provided in Section 10 ("Warranties").
8. REGULATION OF CERTAIN CONTENT. Speed Tuners Network is merely a distributor and is relying on Customer to prescreen or editorially control the content of Customer's Advertisement and the Advertised Site. Speed Tuners Network reserves the right to request the removal of information in the Advertisement or Advertised Site brought to its attention that it deems detrimental to Speed Tuners Network or any person. Customer agrees not to include in the Advertisement or the Advertised Site any material which violates or infringes the rights of any person or which a reasonable person would consider abusive, profane or offensive, which is defamatory or harassing, or which violates or encourages others to violate any applicable law. Customer will not disseminate so-called "chain letters," pornographic or obscene movies or graphic images. To protect itself, Speed Tuners Network may without liability actively cooperate with and furnish identifying and supporting information to any person likely to be harmed by Customer's violation of these provisions and to any law enforcement agency serving a warrant or subpoena on Speed Tuners Network.
9. WARRANTIES. The following provisions are subject to Section 11 ("Limitation of Liabilities").
(a) Noninfringement Warranty. Customer warrants that it's Advertisement and any technology, information or material distributed through the Advertised Site will not infringe or misappropriate any copyright, trademark, patent, trade secrets or privacy rights of any third persons, or otherwise violate this Agreement or any applicable law. Customer will defend, indemnify and hold Speed Tuners Network harmless from all liability and expense (including attorney fees) arising from any claim to the contrary.
(b) Disclaimer. All services, technology or other deliverables are supplied by Speed Tuners Network strictly on an "as is" and "as available" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. Customer accepts all risk concerning suitability, use, performance or nonperformance. Speed Tuners Network MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION AND FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITIES. The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:
(a) Remedies. Customer agrees that if Speed Tuners Network violates any provision of this Agreement and Speed Tuners Network determines that repair or other corrective action is not economically or technically feasible, Customer's sole and exclusive remedy shall be to obtain a refund of amounts paid by Customer to Speed Tuners Network for the allegedly defective services.
(b) Liabilities. Speed Tuners Network SHALL NOT BE LIABLE FOR ANY AMOUNT EXCEEDING THE ADVERTISING FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO ANY CLAIM. IN NO EVENT SHALL Speed Tuners Network BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS FEES) EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.
11. TERM & TERMINATION.
(a) Term. This Agreement shall commence on the date Speed Tuners Network accepts the Advertisement under Section 1 ("General Undertaking"). Unless terminated earlier under Subsection (b) ("Termination"), the term of the Advertisement placement and this Agreement shall continue on for the life of the specified Advertisement campaign or until either party terminates by giving the other party written notice prior to commencement of the next renewal Term. In addition, Speed Tuners Network reserves the right to suspend or terminate the Advertisement at any time without cause and "for convenience," subject to a timely refund of any unearned Advertising Fees prepaid by Customer.
(b) Termination. Either party may suspend or terminate this Agreement if the other party materially breaches any provision and fails within one (1) day of written notice to correct such default or commence corrective action reasonably acceptable to the aggrieved party and proceed with due diligence to correction. Termination shall have no effect on the parties' rights and obligations under Section 5 ("Proprietary Rights"), Section 6 ("Nonsolicitation"), Section 9 ("Warranties"), or Section 10 ("Limitation of Liabilities").
12. DISPUTES, CHOICE OF LAW. Except actions for certain injunctive relief authorized under Section 7 ("Injunctive Relief") that may be brought in a court of competent jurisdiction at any time, the parties agree that all disputes shall be submitted to a single arbitrator under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall be limited to remedies otherwise available in court, shall include a written explanation of the decision and shall be binding upon the parties and enforceable in any court of competent jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES OF AMERICA AND THE COMMONWEALTH OF VIRGINIA, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN SUCH DESIGNATED STATE.
13. INDEPENDENT CONTRACTORS. Each party and its staff are independent contractors in relation to the other party with respect to all matters arising under this Agreement. Nothing herein establishes a partnership, joint venture, association or employment relationship between the parties or any exclusive course of dealing.
14. ASSIGNMENT OR RESALE OF AD SPACE. Customer may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights shall result in immediate termination of this Contract without liability to Speed Tuners Network.
15. USAGE. Unless otherwise agreed to by Speed Tuners Network in writing, the Host Site makes no guarantee of a particular level of usage of number of impressions for any advertisement.
16. MISCELLANEOUS. This document and any attachments incorporated by reference constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all other communications, whether written or oral. This Agreement may be modified or amended only by a writing signed by the party against whom enforcement is sought. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions. Headings are for reference purposes only and have no substantive effect. Each party and its people are independent contractors in relation to the other party with respect to all matters arising under this Agreement.
DSMtuners.com, WRXtuners.com, and EVOtuners.net are owned and operated
by Speed Tuners Network LLC.
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