TERMS AND CONDITIONS OF ADVERTISING SERVICES AGREEMENT
a) “Agreement” shall mean and refer to the Advertising Services Agreement between
Advertiser and POF for POF’s web offerings and advertising network.
b) “Advertising Guidelines” shall mean and refer to the advertising guidelines available
or other location on the Site.
c) “Payment Terms” shall mean and refer to the Payment Terms available here
or other location on the Site.
d) The Agreement, Terms and Conditions, Advertising Guidelines and Payment Terms
shall mutually share any defined terms and definitions, each of which definition(s)
are hereby incorporated by reference in their entirety and form an integral part
Advertiser acknowledges and agrees that, in accordance with the Payment Terms, all
purchases of services and amounts paid are final and non-refundable for any reason
whatsoever. The Advertiser will pay for the Services using the payment method set
out below, and agrees that it will be deemed to have forfeited all amounts paid
if it breaches the Advertising Guidelines.
3. Term and Termination.
The Agreement (including the Terms and Conditions, Advertising Guidelines and Payment
Terms) may be terminated immediately by POF for any reason or no reason by giving
Advertiser written notice of termination. If either party breaches any representation,
warranty or covenant in the Agreement (including the Terms and Conditions, Advertising
Guidelines and Payment Terms), the non-breaching party may terminate the Agreement
(including the Terms and Conditions, Advertising Guidelines and Payment Terms) upon
written notice, unless such breach has been cured by the breaching party within
three (3) business days of such notice. Upon termination of the Agreement, all amounts
owed by Advertiser shall be immediately due and payable. Notwithstanding termination
or expiration of the Agreement, the provisions of the Agreement (including the Terms
and Conditions, Advertising Guidelines and Payment Terms) intended to survive termination
or expiration will survive, including without limitation, (a) all obligations of
Advertiser to indemnify, defend and hold harmless POF, (b) all non-disclosure obligations,
(c) all non-disparagement obligations, (d) all limitations on liability, waivers,
and disclaimers of warranties, and (e) all terms pertaining to remedies available,
jurisdiction and applicable law.
4. Confidentiality and PII.
Advertiser shall keep strictly confidential and shall not disclose, or use for any
purpose other than the fulfillment of its obligations under the Agreement (including
the Terms and Conditions, Advertising Guidelines and Payment Terms) any personally-identifiable
information (“PII”) of any user of the POF’s web offerings and advertising network.
At POF’s request, Advertiser shall designate a fully-qualified representative to
coordinate with POF and provide to POF all information reasonably requested by POF
concerning PII collection and storage, including, without limitation, the data collection
form and the format of such PII. Advertiser shall (i) comply with all applicable
security standards and guidelines and (ii) cooperate with POF to provide access
to its systems as may be reasonably requested by POF to perform or have performed
audits, scan or other testing of Advertiser's systems to verify that all necessary
security measures have been implemented and are functioning properly; provided that
such audit, scan or other testing shall not relieve Advertiser of its obligations
to maintain and secure its systems and the PII as provided in the Agreement. Advertiser
shall ensure that only those personnel who are specifically authorized to gain access
to the PII gain such access, and shall prevent unauthorized access to or destruction,
alteration or loss of any PII. In the event PII is to be transferred (i) between
systems and/or (ii) to POF or any third party, such transfers shall be done in a
secure and encrypted manner approved in advance by POF. If at any time Advertiser
determines that any individual has attempted to circumvent or has circumvented the
security of the PII or that an unauthorized person has accessed or may access PII
(a “Security Breach”), Advertiser shall immediately terminate any such person’s
access and immediately notify POF. In the event of a Security Breach, Advertiser
shall promptly restore security, fully cooperate with POF and immediately provide
information reasonably requested by POF, and shall be responsible for all costs
incurred by POF with respect to such Security Breach. Advertiser shall not, without
POF’s written consent, notify any third party (including affected individuals) regarding
a Security Breach.
Advertiser shall not depict or allow POF to be depicted in a manner that is inconsistent
with instructions provided by POF or in a manner that could reasonably be perceived
as negative, derogatory or detrimental to the brands, name, reputation or trademarks
Advertiser shall defend, indemnify and hold harmless POF and its affiliates, and
their respective officers, directors, employees, agents, successors and assigns
(each a “POF Indemnified Party”), from and against any and all actual or pending
claims, losses, damages, costs, expenses or other liabilities, including reasonable
attorneys’ fees and expenses, including those incurred in any dispute between the
parties, with any third party or in any enforcement of this provision (collectively,
“Losses”) arising out of, relating to or based upon: (i) actual or alleged injury
to any person (including death) or property to the extent caused in whole or in
part by Advertiser or third parties retained or used by Advertiser in connection
with Advertiser’s use of the Services or provision of any advertisement or information
in connection with use of the Services; (ii) non-fulfillment or breach by Advertiser
of any agreement or obligation under the Agreement (including the Terms and Conditions,
Advertising Guidelines and Payment Terms); (iii) the inaccuracy or breach of any
representation, warranty or covenant made by Advertiser in the Agreement (including
the Terms and Conditions, Advertising Guidelines and Payment Terms); and/or (iv)
any act or omission of Advertiser (or its employees, contractors or agents) relating
to the Services or the Agreement (including the Terms and Conditions, Advertising
Guidelines and Payment Terms). The POF Indemnified Party will reasonably cooperate,
at Advertiser’s expense, in such defense. The POF Indemnified Party shall have the
right to participate in the defense of any Losses and to employ counsel, at its
own expense, separate from the counsel employed by Advertiser. Notwithstanding anything
herein to the contrary, Advertiser shall not consent to, and no POF Indemnified
Party shall be required to agree to, any settlement, compromise or judgment that
(x) Advertiser does not fully pay for; (y) provides for injunctive or other non-
monetary relief affecting any other POF Indemnified Party or includes any statement
or implication of any wrongful or improper act or omission by any POF Indemnified
Party and (z) does not include as an unconditional term a release from all liability
of each POF Indemnified Party with respect to such Losses by each third party that
has claimed, or has a right to make a claim for, or with respect to any Losses.
7. Inappropriate Content.
Advertiser shall ensure that no Inappropriate Content (defined below) shall be transmitted
by Advertiser to POF or any third party in the course of Advertiser using any Services.
“Inappropriate Content” means any information or material (including, without limitation,
audio, video, electronic or textual data or such other material) that: (i) is unsolicited,
including without limitation, “junk mail,” “bulk e-mail”, spam or other unsolicited
advertising material; (ii) causes the introduction of “viruses,” “worms,” “Trojan
horses,” “e-mail bombs,” “cancelbots” or other similar destructive or harmful software,
code or computer programming routines; (iii) violates any laws, including but not
limited to the CAN-SPAM Act of 2003 and Section 5 of the FTC Act (and all subsequent
amendments thereto); (iv) is obscene, offensive, threatening, defamatory, discriminatory,
misleading or inaccurate; or (v) infringes the intellectual property or proprietary
rights of any person or entity.
8. Privacy and Data Security Requirements.
Advertiser warrants, represents and covenants to POF that it shall comply with all
applicable privacy and data protection laws, rules and regulations applicable to
its use of the Services. Advertiser shall establish and maintain physical, electronic
and procedural safeguards, including the use of keycards, codes, intrusion detection
systems, user names, passwords and encryption software, to prevent the unauthorized
access, use, copying, disclosure, modification, transference, destruction, loss,
or alteration of any PII, including a person’s name, address, telephone number,
email address, age, social security number, credit card or debit card number, driver’s
license or any other information that is personal or is likely to enable identification
of a specific individual, during Advertiser’s use, transmission or storage of any
such PII. If any of these safeguards are breached or fail, or when PII has been,
or may have been, acquired or accessed by an unauthorized person, Advertiser shall
notify POF immediately. Such notice shall include specifics regarding the type of
PII at issue, the names of the affected individuals, the persons or entities who
have or may have acquired the PII and related details. POF shall have the right
to review and access Advertiser’s PII records and request additional safeguards,
establish backup security for PII and keep backup PII and PII data files in POF’s
possession at its sole discretion.
9. Usernames and Passwords.
(a) As part of the registration process, Advertiser will select a username and password
combination that Advertiser use to access the POF Services. Advertiser shall provide
POF with accurate, complete and updated registration information, and shall promptly
notify POF of any changes in Advertiser’s account information. Advertiser may not
select the name of another person with the intent to impersonate that person or
deceive members or other users as to Advertiser’s true identity. Advertiser agrees
that POF may rely on any data, notice, instruction or request furnished to POF by
Advertiser which is believed by POF to be genuine and to have been sent or presented
by a person reasonably believed by POF to be authorized to act on Advertiser’s behalf.
(b) Advertiser shall immediately notify POF by e-mail at email@example.com of
any known or suspected unauthorized uses of Advertiser’s account, or any known or
suspected breach of security, including loss, theft or unauthorized disclosure of
Advertiser’s username and password. Advertiser shall be responsible for maintaining
the confidentiality of Advertiser’s username and password and Advertiser are responsible
for all usage and activity on Advertiser’s account, including use of the account
by a third party authorized by Advertiser to use Advertiser’s account. POF is not
responsible for safeguarding, keeping confidential, or otherwise preserving the
security of Advertiser’s username and password. Any fraudulent, abusive or otherwise
illegal activity may be grounds for termination by POF and referral to the appropriate
law enforcement agencies.
10. Disclaimers; Limitations on Liability; Jury Waiver.
(a) POF HEREBY STATES THAT THE SERVICES ARE BEING PROVIDED, AND ADVERTISER SHALL
RECEIVE SUCH SERVICES, ON AN "AS IS, WHERE IS" BASIS AND WITHOUT RECOURSE TO, OR
REPRESENTATION OR WARRANTY FROM POF. WITHOUT LIMITING THE FOREGOING, POF EXPRESSLY
DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE GOODS FOR ANY PARTICULAR
PURPOSE OR USE, CONDITION, CHARACTER, QUALITY, DURABILITY, CAPABILITY, SUITABILITY,
VALIDITY, REGULARITY, VALUE, COLLECTABILITY, TITLE OR DESCRIPTION, AND WITH ALL
FAULTS (WHETHER KNOWN OR UNKNOWN), INCLUDING, WITHOUT LIMITATION, LATENT AND PATENT
DEFECTS. ADVERTISER AGREES AND ACKNOWLEDGES THAT POF SHALL HAVE NO RESPONSIBILITY
FOR LOSS OF DATA, UNAVAILABILITY OF ANY COMPUTER SYSTEM OR SERVER, INACCURATE OR
INCOMPLETE TRANSMISSION OF ANY DATA, OR THE SPEED AT WHICH DATA MAY BE TRANSMITTED,
DOWNLOADED OR AVAILABLE.
(b) IN NO EVENT SHALL POF BE LIABLE TO ADVERTISER FOR ANY SPECIAL, INDIRECT, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, ON ANY THEORY OF
LIABILITY, IN CONNECTION WITH OR ARISING OUT OF THE AGREEMENT, REGARDLESS OF WHETHER
ADVERTISER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POF’S TOTAL CUMULATIVE
LIABILITY IN CONNECTION WITH OR ARISING OUT OF THE AGREEMENT, WHETHER IN CONTRACT,
TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID BY ADVERTISER TO POF IN THE
THREE (3) MONTHS THAT IMMEDIATELY PRECEDED THE EVENT GIVING RISE TO SUCH LIABILITY.
(c) EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION, SUIT, CLAIM OR PROCEEDING BROUGHT TO ENFORCE, DEFEND OR INTERPRET
ANY RIGHTS OR REMEDIES ARISING HEREUNDER, RELATING TO OR IN CONNECTION WITH THE
(d) EACH PARTY AGREES THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON
AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS
OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, NO
CLAIM MAY BE CONSOLIDATED OR JOINED WITH MORE THAN ONE PERSON’S OR PARTY’S CLAIMS.
UNLESS BOTH PARTIES AGREE OTHERWISE, NEITHER PARTIES MAY JOIN ANY CONSOLIDATED,
REPRESENTATIVE, OR CLASS PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, NEITHER
PARTY MAY ONLY SEEK AND/OR ACCEPT AN AWARD OF RELIEF (INCLUDING MONETARY, INJUNCTIVE,
AND/OR DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL SEEKING RELIEF AND ONLY TO
THE EXTENT NECSSARY TO PROVIDE RELIEF TO NECESSITATED BY THAT PARTY’S INDIVIDUAL
CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER ADVERTISERS.
Advertiser agrees that a breach or threatened breach of the Agreement (including
the Terms and Conditions, Advertising Guidelines and Payment Terms) will cause irreparable
damage to POF and that POF shall be entitled as a matter of right to injunctive
relief from a court of competent jurisdiction to retrain any further violation by
Affiliate. Such injunctive relief shall be in addition to any other remedies that
may be available to POF at law or in equity. If any legal action is brought to enforce
this Agreement, POF shall be entitled to receive from Advertiser all of POF's attorneys'
fees, court costs and other expenses in addition to any other relief POF may be
entitled to receive.
12. Choice of Law/Jurisdiction and Venue.
The Agreement (including the Terms and Conditions, Advertising Guidelines and Payment
Terms), its interpretation, and all disputes will be governed by the laws of British
Columbia, Canada \, without reference to it conflict of law principles. Each party
hereby consents and agrees that any lawsuit or claim proceeding arising out of or
relating to the Agreement, including any actions brought by third parties, may be
held in British Columbia, Canada and each party hereby irrevocably submits to the
jurisdiction of British Columbia, Canada , which will have jurisdiction over all
such matters pertaining to or relating to the Service and/or the Agreement (including
the Terms and Conditions, Advertising Guidelines and Payment Terms). In any action
brought in British Columbia, Canada the parties waive all objections to personal
jurisdiction or venue. In any action pertaining to or relating to the Service and/or
the Agreement, Advertiser irrevocably consents to service of process by registered
mail postage prepaid to the last known address provided by Advertiser to POF.
The Agreement (including the Terms and Conditions Advertising Guidelines and the
Payment Terms) represents the entire agreement between the parties, and supersedes
all prior agreements and understandings, oral or written, with respect to the Services.
If any provision of the Agreement (including the Terms and Conditions, Advertising
Guidelines and Payment Terms) or part thereof is determined to be void or unenforceable
and the remainder of the Agreement (including the Terms and Conditions, Advertising
Guidelines and Payment Terms) will remain in full force and effect. Advertiser may
not assign or delegate any of its duties or obligations under the Agreement (including
the Terms and Conditions, Advertising Guidelines and the Payment Terms) without
the prior written consent of POF. Any purported assignment without such consent
shall be null and void. POF may assign the Agreement (including the Terms and Conditions,
Advertising Guidelines and the Payment Terms) or any of its rights hereunder or
delegate any of its obligations to any entity without limitation. Nothing contained
in the Agreement (including the Terms and Conditions, Advertising Guidelines and
the Payment Terms) shall be construed to place the parties in a relationship of
partners, joint ventures, principal agent or employer employee, and no party shall
have any authority to obligate or bind the other whatsoever. In no event shall Advertiser
hold itself out to be an agent of POF with the authority to bind POF to any agreement,
contract or obligation.
Last Updated On April 22, 2013.