DigiPowers Advertiser Terms & Conditions

DIGIPOWERS ADVERTISER TERMS & CONDITIONS

Last Updated:  June 30, 2010

The following terms and conditions govern the advertising services performed or to be performed by DigiPowers  INC.  (“DigiPowersâ€), a California. , with its principal place of business located at 765 Market Street 22F, SF, CA 94103 , for advertising company (“Advertiserâ€), and as described on the accompanying insertion order and any subsequent orders, all of which are hereby incorporated (collectively, “Insertion Orderâ€), and supersede any prior agreements or conflicting terms or conditions contained in, or provided with, the Insertion Order. These terms and conditions, together with the Insertion Order, are referred to herein as the “Agreement.â€

1. Content. Advertiser will provide DigiPowers with the content of all logos, graphic files, links, pop-up or pop-under boxes, e-mail text, or other advertising material (“Contentâ€) to be displayed, distributed or used. All content must be submitted in approved file formats. All Content is subject to approval by DigiPowers. DigiPowers may, at its discretion, require edits or reject any advertisement submitted by the Advertiser that it deems inappropriate or that is inconsistent with DigiPowers’s mission and organizational practice. Insertion Orders shall not be invalidated for programming errors or typographical errors, or incorrect insertions in DigiPowers’s applications. The Advertiser shall notify DigiPowers of such errors immediately. Upon notification, errors will be corrected in the next available placement of the advertisement that is agreed to and made in this Agreement, provided the production timelines allow for the insertion of the corrected ad material. DigiPowers shall not be held liable to the Advertiser for any loss that results from the incorrect publication of the Advertiser’s advertisement. DigiPowers reserves the right to insert the word “Advertisement†above or below published Content to avoid confusion.

2. Compensation for Advertising Services. DigiPowers agrees to provide the services described in the Insertion Order (“Servicesâ€), and Advertiser agrees to pay the advertising fees listed on the Insertion Order. Payment is due in full before the advertising order will be processed. The “Character Response System†is a proprietary technology used by DigiPowers to determine whether Content has been viewed by DigiPowers’s users (“DigiPowerersâ€.) DigiPowers does not guarantee any minimum number of views by DigiPowerers. Any fees not paid when due shall be subject to a late fee equal to one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law. DigiPowers may accept a partial payment without prejudice to its rights to recover the balance due or to pursue any other right or remedy. DigiPowers may, without notice, suspend or terminate access to the Services if Advertiser is more than forty-five (45) days delinquent in paying any portion of the fees. Fees shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation of the Account. Nothing herein limits any other rights available to DigiPowers by law to collect sums due and owing. Advertiser is solely responsible for all applicable sales, use, import or export taxes, duties, fees, value-added taxes, surcharges, tariffs or other amounts attributable to the exploitation of the Content under the Agreement.

3. Prohibited Conduct. Each party shall comply with all federal and state laws and regulations, and obtain and maintain all licenses and registrations applicable to its business, the operation of its website, and any advertising or promotional activities. Advertiser represents and warrants that Content will not contain any lewd, obscene, pornographic, hateful, violent, defamatory or libelous content, will not violate any laws regarding unfair competition, anti-discrimination or false advertising, and will not contain viruses, Trojan horses, worms, time bombs, or other similar harmful programming routines. Advertiser’s promotion of products and services that compete directly with those offered by DigiPowers and its affiliates is prohibited. All claims of fact must be fully supportable and should be meaningful in terms of performance or any other benefit. Advertisers should avoid the use of claims whose validity depends upon extremely fine interpretations of meaning. This does not exclude the use of normal qualifiers, such as footnotes, which may be necessary to render a claim true. Advertisers may cite in footnotes references from scientific literature, provided the reference is truthful and is a fair representation of the body of literature supporting the claim made. Comparison to any DigiPowers products or services is strictly prohibited. 

4. Termination. DigiPowers reserves the right to cancel this Agreement without cause at anytime in its sole discretion. 

5. License. Advertiser grants DigiPowers a revocable, non-exclusive, non-transferable worldwide license to use, reproduce and transmit, during the term of the Insertion Order, the Content and Advertiser’s names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, whether currently used or which may be developed or used by it in the future (“Marksâ€) solely for the purpose of displaying the Content on the DigiPowers site and for business development and promotional purposes. Advertiser owns and shall retain all right, title and interest in its Content and Marks.

6. Limitation of Liability. The Advertiser agrees to indemnify and hold harmless DigiPowers for all damages, costs, expenses of any nature, including court costs and legal fees, for which DigiPowers may become liable by reason of its publication of the Advertiser’s advertisement. DigiPowers is not responsible for ad placements near competing products unless an agreement has been made in writing between DigiPowers and Advertiser prior. DigiPowers will not be bound by any condition appearing on Insertion Orders/contracts or copy instructions submitted by or on behalf of the Advertiser, when such condition conflicts with any provision in this Agreement. DigiPowers does not make corrections to Content. Content must be submitted in final format. DigiPowers will not be held responsible for incorrect ad sizes or incorrect copy in Content that is submitted or picked up from a previous DigiPowers publication or outside organization's publication. DigiPowers is not responsible for the final reproductive quality of any materials provided that do not meet the defined specifications of the publication. DigiPowers is not responsible for programming errors or clerical errors, nor will any credits be given for advertising errors not reported after the first occurrence in which the ad is published. 

7. Facsimile Execution. The Parties agree that the signatures on Insertion Orders as well as any other documents to be executed under this Agreement, may be delivered by facsimile in lieu of an original signature, and the Parties agree to treat facsimile signatures as original signatures. 

8. Relationship. This Agreement creates no agency relationship, and neither party shall have authority to obligate or bind the other in any respect.

9. Governing Law. This Agreement shall be governed by and enforced in accordance with the laws of the state of California. The Parties agree that any disputes will be adjudicated in the County of San Francisco in the City of San Francisco unless agreed to by mutual consent.

10. Severability. If any provision in this Agreement is held to be invalid or unenforceable, it shall be ineffective only to the extent of the invalidity, without affecting or impairing the validity and enforceability of the remainder of the provision, or the remaining provisions of this Agreement.

11. Assignment or Transfer. This Agreement may not be assumed or transferred by the Advertiser.

12. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally or by registered mail, by certified mail (return receipt requested), by nationally recognized delivery service, by e-mail or by fax with receipt evidencing transmittal addressed as follows:

If to the DigiPowers, Inc:

 765 Market St. Suite 22F

San Francisco, Ca 94103

If to the Advertiser:

 To the address provided by the Advertiser on the applicable Insertion Order. 

13. Binding Effect. The terms and conditions of this Agreement are binding on and shall inure to the benefit of the Parties and their respective heirs, representatives, successors and permitted assigns.

14. Waivers. The waiver by either Party of a breach by the other Party of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.

15. Amendment. No modification or amendment hereto shall be effective unless made in writing, signed by the Party to be charged.

 16. Entire Agreement. This Agreement contains the entire understanding of the Parties regarding the subject matter of the Agreement. It supersedes any prior understandings and agreements between the Parties regarding the subject matter of the Agreement.