Advertiser's Terms & Conditions
Revised: October 16, 2007
Upon executing an initial Insertion Order for advertising services, each of ClassesUSA.com, Inc., a Delaware corporation ("ClassesUSA") and the advertiser party ("Advertiser") set forth in such initial Insertion Order, agrees to be bound by the terms and conditions of this Agreement (the "Agreement") with respect to such initial Insertion Order and all subsequent Insertion Orders. The purpose of this Agreement is to set forth the terms and conditions upon which ClassesUSA will run Campaigns for Advertiser pursuant to Insertion Orders.
a."Advertiser Content" means all written, graphic or other content provided by Advertiser to ClassesUSA, including any trademarks and service marks, for inclusion on the ClassesUSA Properties.
b."Campaign" means ClassesUSA's inclusion of Advertiser as a participating school on the ClassesUSA Properties as set forth in the applicable Insertion Order and in this Agreement.
c."ClassesUSA Properties" means the ClassesUSA website located at www.ClassesUSA.com and such other internet sites as may be designated by ClassesUSA.
d."Confidential Information" means (i) the terms of this Agreement and Insertion Orders, (ii) all information related to Campaigns, ClassesUSA and its affiliates and partners and other advertisers, (iii) ClassesUSA's marketing strategies, non-public financial and commercial information and trade secrets and (iv) all information provided by ClassUSA directly or indirectly to Advertiser.
e."Cost Per Lead" means the required payment by Advertiser for Leads in the amount set forth in the applicable Insertion Order.
f."Insertion Order" means an order document, in the form required by ClassesUSA, entered into by Advertiser and ClassesUSA, requesting specific Campaigns.
g."Lead" means each completed request for information submitted to Advertiser by ClassesUSA or such other action specifically set forth in the applicable Insertion Order.
h."Service" means the running of Campaigns by ClassesUSA and any other services provided by ClassesUSA under this Agreement.
2. INSERTION ORDERS. The initial Insertion Order must be executed by both ClassesUSA.com and Advertiser. Each subsequent Insertion Order, and all modifications of Insertion Orders, shall be deemed entered into by a party upon express email confirmation of acceptance by an employee or designated representative of such party to the other party or upon such other means of confirmation as designated by ClassesUSA in advance. In addition, each Insertion Order shall be subject to amendment as set forth in Section 15.c below. ClassesUSA.com will have no obligation to provide any Services other than pursuant to an effective Insertion Order. Each Insertion Order is incorporated herein by this reference. In the event of any inconsistency between an Insertion Order and this Agreement, this Agreement will control.
a.No Design or Other Services. Unless otherwise detailed in the applicable Insertion Order, Advertiser acknowledges that ClassesUSA is not obligated to provide any services other than running Campaigns for Advertiser or as otherwise expressly set forth in an Insertion Order.
b.Advertiser Content. ClassesUSA will use its reasonable efforts to work with Advertiser with respect to the content on the ClassesUSA Properties referencing Advertiser. Unless set forth in the applicable Insertion Order, ClassesUSA will have the sole and final right to determine any content (including the placement and positioning of such content) on the ClassesUSA Properties referencing Advertiser, including without limitation the content of the applicable request for information form. Upon request by ClassesUSA, Advertiser will submit all necessary Advertiser Content for inclusion on the ClassesUSA Properties. Advertiser hereby grants to ClassesUSA and its affiliates a nonexclusive right to use and publish the Advertiser Content for the purpose of performing the Services.
c.Filter Specifications. The initial filter specifications for each Campaign will be set forth in the applicable Insertion Order. All changes to such filter specifications must be upon five (5) business days advance written notice to ClassesUSA. ClassesUSA will use commercially reasonable efforts to deliver no less than the number of Leads set forth in the applicable Insertion Order. ClassesUSA does not guarantee such delivery.
d.Lead Quality. ClassesUSA will use commercially reasonable efforts to deliver to Advertiser only Leads that fall within the applicable filter specifications and that have all required information fields. In the event that Advertiser receives Leads that are out of filter specifications or that do not have all required information fields, Advertiser must notify ClassesUSA of the same within five (5) days of receiving such Lead. ClassesUSA will review each matter on a case by case basis. CLASSESUSA DOES NOT MAKE ANY WARRANTY OR GUARANTEE OF ANY KIND AS TO THE PERFORMANCE OR QUALITY OF LEADS, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR GUARANTEE: (I) OF THE VALIDITY OF ANY INFORMATION IN A LEAD OR OTHERWISE THE ABILITY TO CONTACT THE CONSUMER COVERED BY A LEAD, (II) THAT A LEAD IS NOT DUPLICATIVE OF OTHER LEADS, OR (III) THE LIKELIHOOD THAT A CONSUMER WILL ENROLL WITH ADVERTISER OR OTHERWISE ACQUIRE PRODUCTS OR SERVICES FROM ADVERTISER.
4. CLASSESUSA PARTNERS. Advertiser acknowledges and agrees that ClassesUSA may provide the Services directly and/or via third party partners (including without limitation third-party internet content providers). Advertiser hereby agrees that ClassesUSA may sublicense its rights under this Agreement to such third party partners for the purpose of performing the Services.
5. CAMPAIGN TERM. ClassesUSA will use commercially reasonable efforts to commence each Campaign on the start date requested in the applicable Insertion Order. Each Campaign will continue indefinitely until terminated pursuant to Section 6 below and/or as expressly provided in the applicable Insertion Order.
6. CAMPAIGN MODIFICATIONS AND CANCELLATION. Unless expressly prohibited in the applicable Insertion Order, Advertiser may terminate an Insertion Order, or one or more Campaigns within an Insertion Order upon thirty (30) days advance written notice to ClassesUSA. Unless prohibited in the applicable Insertion Order, Advertiser may reduce the monthly total order amount for a Campaign by up to 75% upon five (5) business days advance written notice to ClassesUSA. ClassesUSA may also deny a request to change Lead filter specifications if ClassesUSA reasonably determines that such change would cause a reduction in the monthly total order amount by more than 75%. Advertiser will continue to be responsible for all Cost Per Lead accrued under a Campaign until requested changes are effective. ClassesUSA may terminate this Agreement, any Insertion Order or any Campaign at any time and for any reason whatsoever, or for no reason at all, by providing written notice thereof to Advertiser.
7. PAYMENT TERMS. Advertiser agrees to receive Leads up to the monthly total amount set forth in the applicable Insertion Order for the applicable Campaign. Advertiser agrees to pay to ClassesUSA the Cost Per Lead set forth in the applicable Insertion Order. Except as expressly provided for in the applicable Insertion Order, all payments are due Net 30 days from the date of each invoice. All payments must be made to ClassesUSA via wire transfer, check, money order or cashier's check; credit card payments are not accepted without the prior written approval of ClassesUSA.
a.Credit Accounts. Credit accounts may be established by ClassesUSA in its sole discretion and ClassesUSA may cancel or change the terms of such credit accounts at any time, subject to advance notice by ClassesUSA. Such credit accounts shall be subject to a separate agreement to be entered into by ClassesUSA and Advertiser.
b.Payment Assignment. ClassesUSA shall have the right to assign its right to collect and receive any and all payment, in whole or in part, due under this Agreement by Advertiser to any third party. Advertiser acknowledges and agrees that such third parties are therefore limited third-party beneficiaries of this Agreement to the extent of such assignment. Any payment to a third party pursuant to an assigned claim shall not relieve Advertiser's obligations with respect to any payment not so assigned.
8. FORCE MAJEURE. Neither party will be liable for failure or delay in performing any of its obligations if such failure or delay is due to circumstances beyond the party's reasonable control, including, without limitation, acts of God, any governmental body or failure of software or equipment of third-parties.
9. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3D ABOVE, CLASSESUSA PROVIDES LEADS AND ALL SERVICES TO ADVERTISERS STRICTLY ON AN "AS IS" BASIS. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, CLASSESUSA EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS AFFILIATES AND PARTNERS, ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY BASED ON (A) COURSE OF CONDUCT, (B) INDUSTRY STANDARDS, (C) CUSTOM, (D) MERCHANTABILITY, (E) SATISFACTORY QUALITY, (F) FITNESS FOR A PARTICULAR PURPOSE, OR (G) NON-INFRINGEMENT. ADVERTISER EXPRESSLY AGREES THAT USE OF ALL SERVICES ARE AT ADVERTISER'S SOLE RISK.
10. ADVERTISER WARRANTY. Advertiser warrants and represents that: (a) Advertiser has the right and authority to permit the use, reproduction, distribution and transmission by ClassesUSA and its affiliates and partners of the Advertiser Content ; (b) the use, reproduction, distribution, or transmission of the Advertiser Content shall not, and the Advertiser Content does not, violate any foreign or domestic, federal, state, or local law or regulation, or any rights of any third party, including, but not limited to, any copyright, patent, trademark, trade secret, music, image, or other proprietary, property or contractual right, or constitute false advertising, unfair competition, invasion of privacy or rights of celebrity, or any other right of any person or entity; and (d) Advertiser will comply with all applicable foreign, federal, state and local laws, and the rules and regulations and orders promulgated and issued thereunder, with respect to Advertiser's activities relating to this Agreement, including without limitation the collection, storage, use and disclosure of Lead information by Advertiser.
11. LIMITATION ON LIABILITY. UNDER NO CIRCUMSTANCES WILL CLASSESUSA BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF CLASSESUSA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY INSERTION ORDER AND/OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE, PROFITS OR DATA. IN NO EVENT SHALL CLASSESUSA'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY AND ALL INSERTION ORDERS AND THE SERVICES EXCEED THE TOTAL AMOUNTS PAID BY ADVERTISER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
12. INDEMNIFICATION. Each party will, at its own expense, defend, indemnify and hold harmless the other party for any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by a party arising out of or relating to the other party's breach of any provision or term of this Agreement. In addition, Advertiser will, at its own expense, defend, indemnify and hold harmless ClassesUSA for any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses, that may be incurred by ClassesUSA and/or ClassesUSA's affiliates and partners arising out of or relating to (i) the content or subject matter of any Advertiser Content to the extent used by ClassesUSA or ClassesUSA's affiliates and partners in accordance with this Agreement (including, but not limited to, allegations that any of the same violates the rights of a third party (including intellectual property rights), causes emotional or physical injury to any third-party, is defamatory or obscene or violates any law, regulation or other judicial or administrative action) or (ii) any products or services provided by Partner.
13. CONFIDENTIALITY. Unless otherwise required by law or court order, Advertiser agrees to keep Confidential Information strictly confidential and not disclose such information to any third party, including but not limited to, any competitor of ClassesUSA, advertiser, or to the media. Advertiser agrees to take all necessary action to protect the confidentiality of the Confidential Information. Advertiser may only disclose Confidential Information to Advertiser's officers, directors, employees, attorneys or advisors on a strict need to know basis, provided that such person is subject to a confidentiality agreement sufficient to comply with the terms of this Agreement.
14. ADVERTISER REPRESENTATIVE. In the event this Agreement is being entered into by an agency or other representative ("Agent") on behalf of Advertiser, Agent hereby represents that it has all due authority to create a legally binding agreement on behalf of Advertiser and this Agreement shall be so binding. Agent further agrees that it will be jointly and severally liable for any and all payments, damages and other liabilities under this Agreement to which Advertiser would be responsible.
a.New York Law and Jurisdiction. The laws of the State of New York will exclusively govern any dispute under this Agreement or any Insertion Order between ClassesUSA and Advertiser without reference to New York's conflict of laws principles. Advertiser hereby submits to the exclusive jurisdiction of the state and federal courts located in or nearest to New York County, New York for all legal proceedings relating to or arising from this Agreement. For all applicable purposes, this Agreement shall be deemed to have been prepared by both ClassesUSA and Advertiser.
b.Assignment. Advertiser may not assign this Agreement without the prior written consent of ClassesUSA. Except as set forth in this Agreement, ClassesUSA may not assign this Agreement without prior written consent of Advertiser, provided however ClassesUSA may assign this Agreement to its parent or other affiliated corporate entity or to a successor in interest without consent from or notice to Advertiser. This Agreement is binding on successors and assigns.
c.Amendment. ClassesUSA may amend this Agreement and/or any Insertion Order by providing thirty (30) days advance notice to Advertiser. Advertiser's continued receipt of Services following such thirty (30) day notice period shall constitute Advertiser's express acceptance of such amendment. All other amendments to this Agreement and/or to any Insertion Order must be in writing and signed by each party, or, with respect to applicable Insertion Orders, confirmed in the manner set forth in Section 2 above.
d.Relationship. ClassesUSA and Advertiser are independent contractors and agree that this Agreement does not establish any agency, joint venture or partnership.
e.Waiver. ClassesUSA's failure to object to any document, communication, or act of Advertiser will not be deemed a waiver of any of these terms and conditions and any waiver shall not be deemed to be a waiver of any subsequent defaults of the same or different kind.
f. Severability. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of the Agreement, which shall remain in full force and effect.
g.Survival. In the event this Agreement is terminated, the following provisions will survive such termination: Sections 1, 2 3.d, and 7 through 15, inclusive.
h.Notice. All notices shall be in writing and, if to ClassesUSA, addressed to the address provided for in the preamble of this Agreement, and, if to Advertiser, to the latest address for Advertiser on file with ClassesUSA. All notices will be deemed effective as follows: (i) immediately if delivered in person, (ii) 24 hours from sending if delivered via facsimile or electronic mail or (iii) 72 hours from sending if delivered via priority U.S. mail or another nationally recognized carrier service.