Terms
01. DEFINITIONS.
1.1. “Agreement” means the Order between you and Peppermonkey Media, LLC including its terms and any documents incorporated into the order, if applicable, and these Terms and Conditions of Use.
1.2. “Content” means any text, data, trademarks, service marks, trade names, graphics, logos, URLs, domain names, brand features, photographs, pictures, communications, animation, images, digital clips, audio or video and other related components.
1.3. “Peppermonkey Media, LLC Web Site” means the Web sites provided by Peppermonkey Media, LLC under the Agreement, including domain name, user interface, all related technology, Content, and Software.
1.4. “Peppermonkey Media, LLC” means the goods and services offered by Peppermonkey Media, LLC and ordered by you.
1.5. “Order” means any order or confirmation of an order for Peppermonkey Media, LLC Products, however provided, and including but not (limited) to email or other electronic or telephonic confirmations, add-ons, rider orders or amendments to an order, which incorporates any Additional Documents to the Order and any materials referenced in the Additional Documents and these Terms and Conditions of Use.
1.6. “Software” means any software and related tools that Peppermonkey Media, LLC makes available for your use in connection with the Peppermonkey Media, LLC Product.
1.7. “Term” has the meaning set forth in Section 3.1 below.
1.8. “Terms of Use” means these Peppermonkey Media, LLC Products Terms and Conditions of Use.
1.9. “You” and “your” (both capitalized and lower case) mean the person or business named in the Agreement, alternately referred to as “Advertiser” or “Customer”.
1.10. “Your Content” (Sometimes referred to as “Customer Content”) means any text, data, trademarks, service marks, trade names, graphics, logos, URLs, domain names, brand features, photographs, pictures, communications, animation, images, digital clips, audio or video and other related components provided by you for use in any of the Peppermonkey Media, LLC Products.
02. DELIVERY, FEES, INVOICING & PAYMENT.
2.1. Subject to the terms and conditions of this Agreement including those in these Terms of Use, in or referenced in the Order and those terms incorporated by reference, if any, Peppermonkey Media, LLC shall provide you with the Peppermonkey Media, LLC Products specified on your Order with reasonable skill and care and you shall pay to Peppermonkey Media, LLC the applicable fees for the Peppermonkey Media, LLC Products in accordance with the invoice terms.
2.2 Advertiser must establish one of the following two methods of payment. Credit card to be automatically billed by Peppermonkey Media, LLC Bank account to be automatically debited by Peppermonkey Media, LLC Advertiser authorizes Peppermonkey Media, LLC, or Peppermonkey Media, LLC’s merchant services provider, to store Advertiser’s financial information for the purpose of facilitating payment to Peppermonkey Media, LLC. It is Advertiser’s responsibility to notify PeppermonkeyMedia, LLC, in writing, of any changes or updates to Advertiser’s financial information, and Advertiser is solely responsible for its failure to do so.
2.3 All fees are due in accordance with the agreed upon fee schedule, or immediately upon Advertiser’s receipt of invoice, as applicable. Advertiser agrees that any setup fees or one-time services payments are nonrefundable.
2.4 LATE PAYMENT: Payments made by billing of a credit card or debiting of a bank account are intended in part to avoid the inconvenience and cost to both parties of late or missed payments. However, it is Advertiser’s responsibility to ensure that Peppermonkey Media, LLC has the most up-to-date credit card or bank account information, and that such methods are viable for payment of the fees due to Peppermonkey Media, LLC for the Advertising Services.
2.5 In the event of a failure of the payment method authorized by Advertiser, and one or more payments are made later than the due date, such late payments are subject to a late fee equal to the greater of $25 or 6% of the total payment due, but not to exceed the maximum amount allowed by applicable law. In addition to late fees, Advertiser agrees to pay all attorneys’ fees and costs incurred by Peppermonkey Media, LLC for late payment collection efforts. Customer shall owe and Peppermonkey Media, LLC has the right to invoice for the then-current non-sufficient funds fee for all returned checks. Peppermonkey Media, LLC reserves the right to change payment terms by providing written notice to you for the period following notice. Fees should be paid in U.S. dollars. Fees do not include any telecommunication provider’s charges. Invoices will include additional charges for shipping and handling, if applicable, as well as applicable taxes. Further, you shall be liable for all costs of collection incurred by Peppermonkey Media, LLC, including without limitation, collection agency fees, reasonable attorneys’ fees and court costs, if you fail to comply with the payment obligations set forth herein. Restrictive endorsements or other statements on checks or other forms of payment accepted by Peppermonkey Media, LLC will not be enforceable.
2.6 The term of each Advertising Service shall begin as of the date of acceptance of these Terms and
Conditions by Advertiser. Billing will occur in the form of a one-time payment or an automatically recurring monthly payment, as set forth in the specific product/service terms and conditions for thenAdvertising Service provided.
2.7 IF BILLING IS TO INCLUDE AN AUTOMATICALLY RECURRING PAYMENT: All payment for Advertising Services will be paid in advance on a monthly basis. Following the current contract term for any particular Advertising Service, this Agreement with respect to such Advertising Service shall automatically renew for successive one-month terms on the monthly anniversary date of Advertiser’s initial acceptance of these Terms and Conditions.
After the initial contract term, Advertiser may cancel the automatically recurring payment, including the Advertising Services associated therewith, by providing notice to Peppermonkey Media, LLC by emailing Advertiser’s name, business name, email address, phone number, physical address, and domain, to info@Peppermonkey Media, LLC.com, with “Cancel Service” in the subject line. Provided such notice is received by Peppermonkey Media, LLC not later than 5:00 pm USA Central Time at least (90) ninety days in advance of the date on which the next automatically recurring payment is scheduled to be made, then the next automatically recurringpayment will be cancelled and the Advertising Services terminated at the end of the then-current term. In the event such notice is received closer than ninety (90) days to the next automatically recurring payment, then the next automatically recurring payment will still be made as a final payment, the Advertising Services shall continue for an additional renewal term, and termination will instead occur at the end of that additional renewal term. No prorated refunds for partial terms or months will be provided. For clarity, if an Advertiser were to engage Peppermonkey Media, LLC for Advertising Services with a 365 day contract term, and the initial sign-up date were July 15 of a given year, and Advertiser wished to cancel the Advertising Services at the end of the contract term without incurring an additional month’s charge, Advertiser would need to provide written notice of cancellation on or before April 15. One-time fee offerings have no continuing term because the same are provided up front, the term thereof having been fulfilled upon initial delivery of the Advertising Service to Advertiser.
2.8. The fees for the Peppermonkey Media, LLC Products may include set up fees, deposits, Transactional Commitments (described in Order), Monthly Commitment(s) (described in Order), and other commitments (collectively the “Fees”). While some Fees may be expressed in terms of a Monthly Commitment, Customer is obligated for the sum of any Monthly Commitments or other type of periodic payments throughout the Term. Deposits must be paid upon acceptance of an Order and are non-refundable. Transactional Commitments are payable when invoiced. Any changes or additions to Customer’s selections will affect the Fees.
2.9. Customer billing shall commence upon the commencement of the term set forth in your Order for each Peppermonkey Media, LLC Product, unless otherwise designated.
03. TERM & TERMINATION.
3.1 The term of your Agreement begins either (a) on the date Customer’s billing account is set up if Customer is a new Peppermonkey Media, LLC customer of Peppermonkey Media, LLC’s Products or (b) upon entry of the first order under the Agreement (the “Order”) by Peppermonkey Media, LLC if Customer is an existing customer of Peppermonkey Media, LLC Products, and continues until the expiration of the latest expiring of all the terms for the Peppermonkey Media, LLC Products ordered in the Agreement and its riders, extensions, and amendments or until termination of the Agreement in accordance with its terms (the “Term”).
3.2. Each of the Peppermonkey Media, LLC Products ordered shall be provided for the term specified in the Order (the “Initial Term”). After the expiration of the Initial Term, if any, the terms for the Peppermonkey Media, LLC Products in the applicable Order will be extended on a month to month basis under the terms of this Agreement, until either party terminates in accordance with the terms of this Agreement. Each monthly extension of the Agreement shall be deemed a Renewal Term. Notwithstanding the foregoing, Peppermonkey Media, LLC Products that consist solely of one-time development are excluded from the Renewal Term.
3.3. The Term continues until the expiration of the latest expiring of all Orders under the Agreement or until termination of the Agreement in accordance with its terms. Either party may terminate the Agreement:a. Effective on the first day of any Renewal Term by providing 90 days prior written notice to the other party. If you fail to terminate this Agreement as set forth in this section 3.3.a., then you will be invoiced for such Renewal Term and the applicable products will automatically renew. b. Effective immediately for a material breach by the other party that remains uncured for more than 90 days after the allegedly breaching party receives written notice from the non-breaching party identifying the specific breach.
3.4. Except as set forth in Section 3.3 above, this Agreement may not be terminated by Customer during the Initial Term, except a) by following the “Early Cancellation Provisions” set forth in Section 3.5 below; and b) 90 days after Peppermonkey Media, LLC receives written notice of termination as a result of complete dissolution of Customer’s business, or in the case of a solo proprietorship, if there is a death or retirement, and c) in the event of any increase in a Monthly Commitment, excluding i) any increases set forth in this Agreement, or ii) increases related to adjusting any estimates, provided that such notice is given in writing 90 days prior to termination and is provided within 60 days after the price increase becomes effective. In addition, if you are in default under this Agreement, Peppermonkey Media, LLC reserves the right to withhold all Peppermonkey Media, LLC services from you including those provided under separate Peppermonkey Media, LLC agreements.
3.5. Customer acknowledges that its commitment to each Initial Term was an important factor in Peppermonkey Media, LLC’s decision to agree to the pricing in this Agreement. However, Customer may terminate the Agreement for Customer’s convenience before the end of the applicable Term if Customer (i) notifies Peppermonkey Media, LLC at least 60 days before the effective date of termination and (ii) pays Peppermonkey Media, LLC all amounts invoiced and unpaid as of the date of termination, plus 100% of all deposits, set up fees or similar up front charges in the Agreement. If Peppermonkey Media, LLC terminates the Agreement for Customer’s breach, Customer shall pay the Early Cancellation Fee equal to 60% of the total remaining amounts due under this agreement for the remainder of the Initial Term. In addition to, and not instead of, any other remedies provided elsewhere in this Agreement, or by law for breach, including without limitation Peppermonkey Media, LLC’s right to seek injunctive relief and to sue for damages. Hereinafter, the terms and conditions of this paragraph shall be referenced as the “Early Cancellation Provisions.”
04. COOPERATION & OTHER OBLIGATIONS.
In order for Peppermonkey Media, LLC to provide you the Peppermonkey Media, LLC Products you have ordered, throughout the Term you shall promptly provide Peppermonkey Media, LLC true, accurate, current and complete information, including but not limited to Your Content, and provide reasonable and timely feedback to Peppermonkey Media, LLC and its third party providers on all requests for Your Content, your review, approval and any other information. Failure to promptly provide such information may be considered a material breach of this Agreement and may result in denial, suspension or termination of the Peppermonkey Media, LLC Products. You hereby acknowledge that information provided to Peppermonkey Media, LLC under this Agreement may be shared with Peppermonkey Media, LLC affiliates and other entities that have alliances with Peppermonkey Media, LLC.
05. USER ACCOUNT, PASSWORD, AND SECURITY.
You acknowledge receipt of one or more passwords and account designations for your Peppermonkey Media, LLC Products. Passwords are non-transferable and should not be shared under any circumstances. You are responsible for maintaining the confidentiality of the password and account designation. You will promptly notify Peppermonkey Media, LLC of any unauthorized use of your password or account or any other breach of security involving the Peppermonkey Media, LLC Products.
06. YOUR CONTENT.
6.1. By providing, posting, publishing, uploading, inputting or distributing any Content to or through Peppermonkey Media, LLC or its Peppermonkey Media, LLC Products (“Your Content” defined above), you grant (or warrant that the owner of such rights has expressly granted) Peppermonkey Media, LLC a limited, worldwide, irrevocable, royalty-free, non-exclusive right and license, with the right to sublicense, to use, reproduce, modify, adapt, publish, publicly perform, publicly display, digitally display and digitally perform, translate, create derivative works from and distribute Your Content or incorporate Your Content into any form, medium, or technology now known or later developed throughout the universe, for the purposes of developing, providing, displaying and marketing the Peppermonkey Media, LLC Products, for internal use for product development and for marketing purposes. Peppermonkey Media, LLC may compile and use aggregated non-personal information taken from Your Content and may provide such information to third parties. Aggregated non-personal information means information that is taken from Your Content or your use of the Peppermonkey Media, LLC Products, but that is compiled in a way so that it no longer identifies an individual person. BY ENTERING INTO THIS AGREEMENT YOU UNDERSTAND AND CONSENT TO Peppermonkey Media, LLC EXTRACTING YOUR CONTENT FROM YOUR EXISTING WEB SITE(S) FOR USE IN THE Peppermonkey Media, LLC PRODUCTS. YOU FURTHER AGREE THAT SUCH EXTRACTED DATA A) SHALL BE CONSIDERED PROVIDED BY YOU FOR USE IN Peppermonkey Media, LLC PRODUCTS, AND B) IS SUBJECT TO THE LICENSE GRANT SET FORTH IN THIS SECTION 6.1. YOU AGREE THAT ANY INFORMATION EXTRACTED FROM YOUR WEB SITE WILL REPLACE CURRENT INFORMATION IN YOUR Peppermonkey Media, LLC PRODUCTS. IF YOU DO NOT POSSESS SUFFICIENT RIGHTS IN CONTENT ON YOUR WEB SITE TO ALLOW Peppermonkey Media, LLC’S USE OF THE CONTENT IN ACCORDANCE WITH THESE TERMS, YOU AGREE TO PROVIDE Peppermonkey Media, LLC PROMPT NOTIFICATION OF SUCH LIMITATIONS. SHOULD YOU WISH TO WITHDRAW OR LIMIT THE FOREGOING CONSENT AT ANY TIME YOU MAY YOU MAY GIVE NOTICE TO Peppermonkey Media, LLC OF ANY DESIRED REMOVAL OR OF ANY LIMITATIONS ON USE EITHER BY CONTACTING Peppermonkey Media, LLC.
6.2. You are solely responsible for Your Content. You are liable for any material protected by copyright, trademark, patent or trade secret law used in Your Content without the permission of the author or owner, and for defamatory materials in any of Your Content. Peppermonkey Media, LLC is not responsible for reviewing Your Content before it appears on the Peppermonkey Media, LLC Products. You represent and warrant that (i) Your Content contains no offensive, harassing, inflammatory, defamatory, indecent, or obscene material, (ii) Your Content does not violate any applicable laws, regulations, or judicial rulings; (iii) Your Content is not false, misleading, deceptive, or fraudulent; (iv) you will endeavor in good faith to honor allpromises, offers, and statements you make in Your Content and in any related materials, products, services, or communications you offer or make through Your Content; (v) you own or are authorized to use Your Content and all trademarks, trade names, and similar materials of any kind which are included in Your Content; and (vi) Your Content does not infringe upon or violate any intellectual property, proprietary, or other rights of Peppermonkey Media, LLC, its affiliates, and any third party. Peppermonkey Media, LLC reserves the right, in its sole discretion, to refuse to display or to remove from the Peppermonkey Media, LLC Products at any time any Content that it reasonably regards as violating this provision as otherwise inappropriate or as inconsistent with Peppermonkey Media, LLC editorial policies in effect from time to time. Peppermonkey Media, LLC reserves the right to release current or past information related to you if Peppermonkey Media, LLC believes that you or any of Your Content, any of the Peppermonkey Media, LLC Products you ordered, or your account is in violation of any criminal laws or is being used to commit unlawful acts, or if the information is subpoenaed.
6.3. Customer understands and acknowledges that: (a) Peppermonkey Media, LLC’s timely development and implementation of your Peppermonkey Media, LLC Products is contingent upon your timely provision of Your Content and feedback, (b) the Peppermonkey Media, LLC Products, Your Content and media plans are subject to the rules of each applicable Media Outlet on which they may appear; and (b) once a Peppermonkey Media, LLC Product is distributed, posted, hosted or placed upon a third party Media Outlet Web site or search engine Peppermonkey Media, LLC assumes no
responsibility for its display on or removal from that site;
07. UPGRADES AND OTHER SERVICES.
7.1 You hereby acknowledge that Peppermonkey Media, LLC may send you information (via postal service, email or other electronic means, and facsimile) and offers about upgrades and other services provided by Peppermonkey Media, LLC, its affiliates and other entities that have alliances with Peppermonkey Media, LLC unless you provide written notice to the contrary. Notwithstanding the foregoing, under no circumstances will Peppermonkey Media, LLC, its affiliates or other entities have any obligation to provide you with upgrades, enhancements, or modifications for the Peppermonkey Media, LLC Products
08. PROPRIETARY RIGHTS.
Except as otherwise specified in the Agreement and except for Your Content and any domain name(s) you own (i) the Software; (ii) the Peppermonkey Media, LLC Products; (iii) the Peppermonkey Media, LLC domain names (iv) the Peppermonkey Media, LLC Web Sites and all content therein, (v) the Peppermonkey Media, LLC online services and all content therein; (vi) Peppermonkey Media, LLC owned or controlled logos, service marks and trademarks (the “Marks”) placed in any Peppermonkey Media, LLC Products and (vii) all Content other than Your Content, are owned by Peppermonkey Media, LLC and/or its licensors and are protected by copyrights, trademarks, service marks, patents, or other proprietary rights, laws, and regulations. As between you and Peppermonkey Media, LLC, you retain ownership of Your Content.
09. OTHER RESPONSIBILITIES.
9.1. You represent that you are solely responsible for compliance with all laws, rules, and regulations governing attorney advertising, ethical obligations, licensure, promulgated by any applicable jurisdiction, court, bar association, and any other governing body which are applicable to you, or other representatives, the Peppermonkey Media, LLC Web Site, and your use of the Peppermonkey Media, LLC
Products.
9.2. If you include your email address or other contact information in any profile, posting or other content, resulting in your receiving email or other communications sent from any third party, you acknowledge that you have the sole discretion whether to respond to that sender, who may be an impostor, and you do so at your sole risk. You are solely responsible for assessing the integrity, authenticity, honesty and trustworthiness of all persons with whom you choose to communicate. You agree that Peppermonkey Media, LLC and affiliates shall have no liability or responsibility whatsoever for any communications, agreements or transactions between you and any third party.
10. INDEMNIFICATION.
10.1 You will indemnify, defend, and hold harmless Peppermonkey Media, LLC, its successors, assigns, parents, subsidiaries, alliance entities, affiliates and their respective officers, directors, employees, contractors, licensors, suppliers and agents from and against any and all claims, actions, demands, losses, expenses (including reasonable attorneys’ fees), damages, liabilities, taxes, penalties, assessments, judgments and costs arising out of, from, or in connection with (i) Your Content or Peppermonkey Media, LLC’s use of Your Content as permitted by this Agreement, (ii) your Web site, if any, its content, chosen keywords and phrases, and any services you offer in connection therewith, (iii) any breach of your representations or warranties set forth herein, (iv) any breach by you under this Agreement or violation by you of applicable laws, regulations or ethical requirements, (v) your breach of any of the terms of this Agreement, or (vi) any communications you provide through any Peppermonkey Media, LLC Product, including, without limitation, any claims or allegations of intellectual property infringement, libel, and legal malpractice.
If a third party threatens or files a claim covered by this Indemnification Section against Peppermonkey Media, LLC, Peppermonkey Media, LLC shall promptly give notice to Customer. If a third party threatens or files a claim covered by this Indemnification Section against Customer, Customer shall promptly give notice to Peppermonkey Media, LLC.
10. INDEMNIFICATION.
10.1 You will indemnify, defend, and hold harmless Peppermonkey Media, LLC, its successors, assigns, parents, subsidiaries, alliance entities, affiliates and their respective officers, directors, employees, contractors, licensors, suppliers and agents from and against any and all claims, actions, demands, losses, expenses (including reasonable attorneys’ fees), damages, liabilities, taxes, penalties, assessments, judgments and costs arising out of, from, or in connection with (i) Your Content or Peppermonkey Media, LLC’s use of Your Content as permitted by this Agreement, (ii) your Web site, if any, its content, chosen keywords and phrases, and any services you offer in connection therewith, (iii) any breach of your representations or warranties set forth herein, (iv) any breach by you under this Agreement or violation by you of applicable laws, regulations or ethical requirements, (v) your breach of any of the terms of this Agreement, or (vi) any communications you provide through any Peppermonkey Media, LLC Product, including, without limitation, any claims or allegations of intellectual property infringement, libel, and legal malpractice. If a third party threatens or files a claim covered by this Indemnification Section against Peppermonkey Media, LLC, Peppermonkey Media, LLC shall promptly give notice to Customer. If a third party threatens or files a claim covered by this Indemnification Section against Customer, Customer shall promptly give notice to Peppermonkey Media, LLC.
11. DISCLAIMER OF WARRANTIES.
11.1 YOU EXPRESSLY AGREE THAT USE OF THE Peppermonkey Media, LLC PRODUCTS IS AT YOUR SOLE RISK. THE Peppermonkey Media, LLC PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Peppermonkey Media, LLC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Peppermonkey Media, LLC, ITS
LICENSORS, SUPPLIERS, SPONSORS, SUBCONTRACTORS, AND AFFILIATES MAKE: (A) NO WARRANTY THAT THE Peppermonkey Media, LLC PRODUCTS WILL MEET YOUR REQUIREMENTS, THAT THE Peppermonkey Media, LLC PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (B) NO WARRANTY ABOUT THE RESULTS OBTAINED FROM THE Peppermonkey Media, LLC PRODUCTS OR THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE Peppermonkey Media, LLC PRODUCTS, (C) NO WARRANTY THAT DEFECTS IN THE SOFTWARE, THE Peppermonkey Media, LLC PRODUCTS, OR THE RESULTS WILL BECORRECTED, AND (D) NO WARRANTY REGARDING ANY GOODS OR SERVICES
PURCHASED OR OBTAINED THROUGH OR FROM THE Peppermonkey Media, LLC WEB
SITES, OTHER WEB SITES, OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH WEBSITES.
12. LIMITATION OF LIABILITY.
12.1 EXCEPT FOR THE Peppermonkey Media, LLC OBLIGATIONS IN THE INDEMNIFICATION SECTION ABOVE, THE LIABILITY OF Peppermonkey Media, LLC IS LIMITED TO THE FEE PAID BY YOU FOR THE Peppermonkey Media, LLC PRODUCTS DURING THE 12-MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM OR CAUSE OF ACTION AROSE. EXCEPT FOR THE Peppermonkey Media, LLC OBLIGATIONS SET FORTH IN THE INDEMNIFICATION SECTION, Peppermonkey Media, LLC SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF Peppermonkey Media, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Peppermonkey Media, LLC IS NOT RESPONSIBLE FOR ANY LOSS OF DATA RESULTING FROM Peppermonkey Media, LLC’S DELETION OF ANY OF THE Peppermonkey Media,
LLC PRODUCTS, NETWORK OR SYSTEM OUTAGES, EQUIPMENT OR TELECOMMUNICATIONS FAILURE OR MALFUNCTIONS, FILE CORRUPTION, OR ANY OTHER REASONS. Peppermonkey Media, LLC IS NOT RESPONSIBLE FOR THE DELIVERY OF ANY GOODS OR SERVICES SOLD OR ADVERTISED BY YOU OR OTHERS. YOU ARE COMPLETELY RESPONSIBLE FOR ALL ACTIVITIES, FEES, AND/OR LIABILITIES THAT ARE RELATED TO OR RESULT FROM USE OF THE Peppermonkey Media, LLC PRODUCTS UNDER YOUR PASSWORD OR ACCOUNT. IN ADDITION TO THE FOREGOING, Peppermonkey Media, LLC SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND RESULTING FROM SUBSCRIBER’S NONCOMPLIANCE WITH ALL LOCAL AND STATE ETHICS RULES OR OTHER RULES APPLICABLE OR FROM SUBSCRIBER’S VIOLATION OF SUCH RULES.
13. CONFLICT.
13.1 If there is a conflict between any written terms of your Agreement with Peppermonkey Media, LLC and these terms and conditions of use, the terms and conditions of the written Agreement govern as to the subject of the Agreement.
14. CONFIDENTIALITY.
14.1 The Agreement, including but not limited to its terms, conditions and pricing information is “Confidential Information” of Peppermonkey Media, LLC. Customer will receive and maintain Confidential Information in trust and confidence and not disclose or provide access to the Confidential Information to any third party. Customer will further limit disclosure within its organization to those persons who have a “need-toknow”. Customer understands disclosure of Confidential Information may cause competitive harm to Peppermonkey Media, LLC. If Customer breaches this confidentiality provision, Peppermonkey Media, LLC may, at its option, and in addition to any other remedy it may have under the Agreement, at law or in equity, immediately terminate the Peppermonkey Media, LLC Products provided under the Agreement without refund and immediately collect from Customer the Early Cancellation Fee.
15. GENERAL.
15.1 Law. Unless specifically stated otherwise in the Agreement, this Agreement is governed by the laws of the State of New Jersey without regard to its conflict of law provisions and you and Peppermonkey Media, LLC submit to the personal and exclusive jurisdiction of the courts located within the State of New Jersey. Peppermonkey Media, LLC may waive the foregoing exclusive jurisdiction provision by written notice from an authorized Peppermonkey Media, LLC representative or by filing a complaint in any other jurisdiction.
15.2 Waiver. The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
15.3 Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the court should give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement will remain in full force and effect. If that term cannot be so interpreted or reformed, that term will be omitted and, if the term is essential to the Order, the parties will promptly begin good faith negotiations to replace it. The other terms of the Order will remain in effect and be enforceable with the invalid or unenforceable term interpreted, reformed, replaced, or omitted, as the case may be.
15.4 Claims. Any claim or cause of action arising out of or related to the Peppermonkey Media, LLC Products or this Agreement must be filed within 3 months after such claim or cause of action arose or is forever barred, except for Peppermonkey Media, LLC claims based on amounts billed, payments made or your failure to pay for the Peppermonkey Media, LLC Products, regardless of any statute or law to the contrary.
15.5 Modifications. Peppermonkey Media, LLC may modify the Peppermonkey Media, LLC Products, withdraw Peppermonkey Media, LLC Products it ceases to offer, or modify this Agreement, in whole or in part, at any time upon reasonable advance notice to you with such modifications taking effect from the date of such notice forward. Notice of such modification or withdrawal may be made by or on behalf of Peppermonkey Media, LLC to you via email, regular mail, telecopy, delivery service, or posting on a Peppermonkey Media, LLC Web Site.
If the terms and conditions applicable to your Agreement are materially modified, you may terminate the Agreement with ten (10) days prior written notice to Peppermonkey Media, LLC, so long as notice of termination is made within ninety (90) days after Peppermonkey Media, LLC issues such notice. You will be deemed to have agreed to such modified Agreement if Peppermonkey Media, LLC does not receive a notice of termination from you within such period. Notwithstanding the foregoing, you shall be bound by modifications to the Agreement for any use of the Peppermonkey Media, LLC Products following the notice of the change. If a Peppermonkey Media, LLC Product you ordered is materially modified, you may terminate that portion of the Order including that Peppermonkey Media, LLC Product with ten (10) days prior written notice to Peppermonkey Media, LLC, so long as notice of termination is made within ninety (90) days after Peppermonkey Media, LLC issues such notice. You will be deemed to have agreed to such modification to the Peppermonkey Media, LLC Product if Peppermonkey Media, LLC does not receive a notice of termination from you within such period. Notwithstanding the foregoing, you shall be bound by modifications to the Agreement for any use of the Peppermonkey Media, LLC Products following the notice of the change. If a Peppermonkey Media, LLC Product is withdrawn from the Order, then you shall only pay Peppermonkey Media, LLC the pro rata Fees and applicable taxes for such Peppermonkey Media, LLC Product through the date the Peppermonkey Media, LLC Product ceased to be provided.
15.6 Complete Agreement. The Agreement, including any exhibits, riders, and amendments state the complete agreement between you and Peppermonkey Media, LLC concerning this subject and, except as stated otherwise in the written Agreement, supersedes all earlier oral and written communications between the parties concerning this subject.
15.7 Acceptance. The Agreement is subject to acceptance by Peppermonkey Media, LLC, which acceptance shall be evidenced by providing access to the Peppermonkey Media, LLC Products. You warrant and represent that you have full right, power and authority to enter into this Agreement and to grant the rights granted herein without violating any other agreement or commitment of any kind and that the person accepting the Agreement on your behalf, whether such acceptance is in writing, electronically or through other means, has the power and authority to enter the Agreement on your behalf.
15.8 No Exclusivity. Orders do not grant Customer an exclusive right or privilege to receive Products. Peppermonkey Media, LLC may, in its sole discretion, provide similar or identical products to other customers, which may be competitors of Customer.
15.9 Relationship. Customer and Peppermonkey Media, LLC are independent contractors. Nothing in an Order is intended to or will constitute Customer or Peppermonkey Media, LLC as an agent, legal representative, partner, joint venturer, franchisee, employee, or servant of the other for any purpose. Neither Customer nor Peppermonkey Media, LLC shall make any contract, commitment, warranty, or representation on behalf of the other, or incur any debt or other obligation in the other’s name.
15.10 Amendments. If an Order document specifies a process by which it may be amended, then
Peppermonkey Media, LLC may amend it according to that process. No other amendment to an Order will be binding unless agreed to in a writing executed by Peppermonkey Media, LLC and Customer, and no approval, consent, or waiver will be enforceable unless signed by the granting party. No preprinted term appearing in any document that is not part of an Order will be enforceable by the originating party against the other party unless that term is expressly accepted in writing by an authorized representative of the other party. No document will be deemed to amend an Order by implication.
15.11 Survival. Sections 2.2, 3.5, 5, 6, 7.2. and 8 through 17, and all provisions in these Terms of Use including indemnification/defense of claims provisions, limitations of liability, representations and warranties as to Intellectual property rights, disclaimers of warranties and, any accrued but unpaid financial obligations, and any other terms in an Agreement that by their nature should or typically would survive expiration or termination will survive the expiration or termination for any reason of the Order(s) and the Agreement.
15.12 Non-Assignment. Customer may not assign its rights or delegate your duties under this Agreement to access the Peppermonkey Media, LLC Products without the prior written consent of Peppermonkey Media, LLC, which consent shall not be unreasonably withheld.
15.13 Successors and Assigns. The Agreement will be binding on, and will inure to the benefit of, the parties’ and their respective successors and permitted assigns.
15.14 Force Majeure. No party will be liable for any damage, delay, or failure of performance resulting directly or indirectly from a Force Majeure. If a Force Majeure occurs, the affected party will notify the other parties and make commercially reasonable efforts to mitigate the adverse effects of the Force Majeure on the performance of the Order. This Force Majeure Section does not excuse Customer’s obligation to pay for Peppermonkey Media, LLC Products actually received
16. ACCEPTANCE OF THESE TERMS AND CONDITIONS
16.1 Advertiser or its agent or representative verbally accepted a summary of key provisions related to payment, term of service, and Peppermonkey Media, LLC’s cancellation policy, and/or expressly accepted these Terms and Conditions.
