These terms and conditions (the "Terms") are entered into between Kolkata Beckons website administrator, Anirban Biswas, ("Kolkata Beckons") and the Advertiser and/or Agency ("Customer") referenced on the corresponding insertion order ("IO"). If Customer is an Agency, Agency represents and warrants that (1) Advertiser has authorized Agency to enter into this Agreement on Advertiser's behalf and to represent the Advertiser within the scope of this Agreement, and (2) Advertiser agrees to be bound by the terms of this Agreement, including but not limited to paying Kolkata Beckons for advertisements delivered pursuant to this Agreement and any corresponding IOs. These Terms shall be deemed incorporated by reference into any IO submitted by Customer. The Terms and IOs collectively form the "Agreement."
1. Reservation of Right. Kolkata Beckons reserves the right to reject or cancel any advertisement, insertion order or placement guarantee at any time without cause. All advertisements must conform to the standards of Kolkata Beckons and, in Kolkata Beckons's estimation, be suitable for publication. Only publication of an advertisement shall constitute final acceptance.
2. Endorsement. Publication of an advertisement does not necessarily imply endorsement by Kolkata Beckons.
3. Term; Renewal. The term of these Terms commences on the Start Date set forth in the IO ("Start Date") and continues in force and effect until terminated pursuant to section 4. Except as expressly set forth in the IO, any renewal of the IO, acceptance of any additional IOs, and pricing for such renewal or additional IOs shall be at Kolkata Beckons's sole discretion.
4. Termination; Effect of Termination. Kolkata Beckons shall have the right to terminate any IO (and this Agreement), in whole or in part, with or without cause, at any time except as provided in an IO. Once an IO is submitted, Customer cannot terminate it for any reason unless expressly provided in the IO. Upon termination for any reason, (i) Customer shall remain liable for any amount due under an IO for advertisements delivered by Kolkata Beckons and such obligation to pay shall survive termination of this Agreement, (ii) at the request of either party, the other party shall return all Confidential Information and (iii) Sections 4 and 6-11 shall survive termination.
5. Confidentiality. Customer shall make no public announcement regarding the existence or content of the IO without Kolkata Beckons's prior written approval. Furthermore, during the term of this Agreement, and for a period of two years following any IO End Date, neither party will use or disclose any Confidential Information of the other party except as provided herein. "Confidential Information" includes (1) advertisements, prior to publication, (2) IOs, (3) any Kolkata Beckons statistics and information designated by either party in writing, or identified orally at time of disclosure as "confidential" or "proprietary." The foregoing restriction does not apply to information that has become publicly known through no breach by a party, or has been: (1) independently developed without access to the other party's Confidential Information; (2) rightfully received from a third party; (3) approved in writing for release by the disclosing party; (4) required to be disclosed by law or by a governmental authority.
6. No Warranty. KOLKATA BECKONS MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
7. Limitations of Liability; Force Majeure. In no event shall Kolkata Beckons be liable for any act or omission, or any event directly or indirectly resulting from any act or omission, of Customer, or any third parties (if any). EXCEPT FOR THE PARTIES' INDEMNIFICATION AND CONFIDENTIAILITY OBLIGATIONS HEREUNDER, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (II) EACH PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT PAID OR PAYABLE TO KOLKATA BECKONS FROM CUSTOMER FOR THE IO GIVING RISE TO THE CLAIM. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
8. Customer's Responsibilities. Customer is responsible for the selection of keywords, the content and display of advertisements, URL links, and IOs including any trademark issues associated therewith. Customer shall ensure that(a) Customer holds all rights needed to permit the use, reproduction, display, transmission and distribution of the advertisement and all contents therein ("Use") by Kolkata Beckons; and (b) Kolkata Beckons's Use, Customer's keywords, any data regarding users, and any material to which users can link, or any products or services made available to users through the advertisement will not (i) violate any criminal laws or third party rights; (ii) encourage conduct that would constitute a criminal offense or violate any law; or (iii) give rise to civil liability.
9. Advertisement Placement and Modification. Customer agrees (unless otherwise specified in an IO) that advertisements will be displayed in all pages of www.kolkatabeckons.com whenever the pages are browsed in a web browser, either alone or in combination with other advertisements. If Kolkata Beckons receives a complaint from a third party alleging that the advertisements corresponding to an IO infringe the third party's trademark or other proprietary rights, Kolkata Beckons shall have the right to disable the advertisements at issue.
10. Indemnification. Each party agrees to indemnify the other party and its respective agents, affiliates, subsidiaries, directors, officers, employees and applicable third parties (e.g., syndication partners, licensors, licensees, consultants, and contractors) ("Indemnified Person(s)") from and against any third party claim, liability, loss and expense (including damage awards, settlement amounts, and reasonable legal fees and expenses incurred by the indemnifying party in such defense) ("Liabilities"), arising out of the breach by the indemnifying party of its obligations under this Agreement and failure to comply with applicable law in the performance of its obligations hereunder during the Term. The indemnification obligations regarding the Indemnified Person(s) and Liabilities shall exist only if the indemnified party (the "Indemnitee") (1) promptly notifies the indemnifying party (the "Indemnitor") of any claim, (2) provides the Indemnitor with reasonable information and cooperation in defending the claim, and (3) gives the Indemnitor full control and sole authority over the defense and settlement of such claim. The Indemnitee may join in defense with counsel of its choice at its own expense. The Indemnitor shall not reimburse the Indemnitee for any expenses incurred without prior written approval.
11. Priority; Miscellaneous. These Terms shall supersede any and all conflicting terms in an IO unless a provision of these Terms expressly allows for control by the IO. This Agreement: (1) shall be governed by the laws of Maharashtra, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Mumbai, India. This constitutes the entire agreement between the parties with respect to the subject matter hereof. Each party hereto is duly authorized to enter into this Agreement and perform its obligations hereunder. Any modifications to this Agreement must be made in a writing executed by both parties. The parties will negotiate any dispute hereunder in good faith within thirty (30) days of receiving written notice; this obligation shall not eliminate any remedies available to the parties. Any notices shall be sent to the addresses set forth in the IO by facsimile or overnight courier and shall be deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default. If any provision herein is unenforceable under any applicable law, then such provision will be modified to reflect the intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Any reference to the term "partner" herein does not denote a legal partnership relationship, but one of independent contractors. Customer may not resell, assign, or transfer any of its rights hereunder. Any such attempt shall automatically terminate the Agreement, without liability to Kolkata Beckons. |