HEAVENSPOT ADVERTISING TERMS AND CONDITIONS

These Advertising Terms and Conditions are hereby made part of the attached General Rate Card/Contract/Insertion Order (the “Advertising Agreement”) by and between Heavenspot, Inc. (“Agency”) and the advertiser named therein and party thereto (“Advertising Party”) and its advertising agency, if any (“Advertising Agency,” and together with Advertising Party, “Advertiser”). Each such party acknowledges that the following additional terms and conditions are incorporated in and made a part of the Advertising Agreement. This Addendum, including the attached Advertising Agreement (along with any supplements, amendments, exhibits, schedules or addendums thereto, collectively, the “Agreement”), shall be binding upon the parties.

1. ADVERTISING ACCEPTANCE; AGENCY’S RIGHT TO REJECT OR ALTER 
(a) Submission of an advertisement to Agency does not constitute a commitment by Agency to publish the advertisement. Agency accepts advertising only by publishing such advertisement. Upon such acceptance, Advertiser acknowledges that (i) the terms and conditions set forth in this Agreement shall apply to all advertising orders unless such terms and conditions are modified, superseded or otherwise altered by a written instrument signed by an authorized representative of Agency, (ii) the terms and conditions set forth in this Agreement shall prevail over any inconsistent terms and conditions set forth in any order or contract form of any Advertiser and (iii) insertion orders containing disclaimers are not acceptable and are not legally binding or valid. Agency has the right, in its sole and absolute discretion, to reject any advertisement or any portion thereof. Agency’s publication of an advertisement shall not affect its right to reject such advertisement thereafter.

(b) Agency reserves the right to alter any advertising material in order for the material to conform to its current mechanical specifications. The rates stated in the Advertising Agreement shall remain the same upon a reduction in the size of any advertisement as long as the advertisement maintains the same proportion of the entire page. Agency rates are based on column inch size rather than actual published size, which may have shrinkage related to the printing process.

2. LAWFUL ADVERTISING; INDEMNIFICATION 
Advertising Party and Advertising Agency, if applicable, jointly and severally represent and warrant that (a) any and all material submitted to Agency (i) is accurate and original, (ii) does not violate any law or contract or infringe the copyrights, trademarks, trade names, patents or other intellectual property rights of any person, (iii) does not constitute unfair competition, and (iv) contains no matter which is libelous, an invasion of privacy or publicity, an unlawful appropriation of any name or likeness or is otherwise injurious to the rights of any person; and (b) each of Advertising Party and Advertising Agency, if applicable, has obtained all necessary consents for publication prior to submission to Agency. Advertising Party and Advertising Agency, if applicable, jointly and severally agree to defend, indemnify and hold Agency and its affiliates and their respective directors, officers, principals, managers, members, partners, shareholders, employees, and controlling persons and their affiliates (Agency and each such person being an “Indemnified Party”), harmless from and against all damages to and liabilities resulting from or relating to demands, claims, actions or causes of action, assessments or other losses, costs and expenses relating thereto, interest and penalties thereon and attorneys’ fees, legal fees and any other expenses in respect thereof or in enforcing their rights hereunder, by reason of or resulting from or attributable to its breach of this Agreement, the publication of any advertisement by Agency (whether or not Agency assisted in the preparation of the advertisement), the distribution of any sample product submitted by Advertising Party and/or Advertising Agency or the acts or omissions of Advertiser, its contractors, agents, employees and guests at any Agency event (if the insertion order includes Advertiser’s sponsorship of a Agency event).

3. MATERIALS; COPYRIGHTS, TRADEMARKS AND INTELLECTUAL PROPERTY. 
(a) Agency has no obligation to return any material submitted to Agency by or on behalf of Advertiser to Advertiser or any other party, and Agency shall have no liability for its loss or destruction.

(b) Agency shall have the right to use any advertising published in Agency’s publication for the purpose of promoting any of the products and services of Agency. Advertiser grants Agency a non-exclusive, perpetual, irrevocable and worldwide license to publish any and all advertising content created by Advertiser or its agents or Agency, including but not limited to photographs, artwork, text and graphics, in any media, presently known or unknown, including but not limited to Agency’s electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media. To the extent feasible and with the use of known technological resources, Agency agrees that it will make reasonable efforts to prevent the reproduction of coupons capable of redemption by a consumer in any of Agency’s electronic publications.

4. POSITION REQUESTS 
Agency shall not be deemed in breach of this Agreement in the event that it does not honor a specific position agreement due to conflicting editorial needs, in Agency’s sole discretion. In the event Advertiser has paid a premium for a particular position, reimbursement for failure to publish in a particular position shall be limited to the refund of such premium to Advertiser.

5. LIABILITY FOR ERRORS, OMISSIONS OR FAILURE TO PUBLISH OR DISTRIBUTE 
(a) Agency’s liability for errors or omissions in advertisements or advertising inserts shall be limited to the cost of advertising space in an amount equal to the erroneous advertisement. Agency’s liability for failure to publish any advertisement or distribute any advertising insert shall be limited to a refund of any amount paid to Agency for such advertisement or insert. Notwithstanding the foregoing, Agency shall have no liability for, and no credit shall be issued to Advertiser for, errors that do not materially affect the value of the advertisement or advertising insert or where Advertiser is responsible for the error or omission. Credits for errors in advertisements or advertising inserts materially affected by the error are allowed for the first publication or distribution only. Agency’s liability in connection with any sponsorship of a Agency event shall be limited to the amounts payable to Agency under the particular insertion order to which it relates.

(b) Notwithstanding anything to the contrary herein, in no event shall Agency be liable to Advertiser or to any other parties for any further damages of any kind arising from any breach of this Agreement or any other advertising contract, written or oral, or act or omission of Agency with respect to an advertisement or advertising insert or sponsorship, including but not limited to, direct, indirect, special, consequential, or punitive damages.

(c) Agency is not responsible for errors involving orders, cancellations or corrections given orally. Written or facsimile confirmation of orders, cancellations or corrections must be received prior to Agency’s cancellation deadline. Agency will publish advertisements and bill Advertiser for all advertising orders that are not canceled prior to the deadline. Advertiser may be subject to a cancellation charge when such cancellation results in production delays.

(d) Agency shall not be responsible for the loss, theft or damage to any personal property of Advertiser, its employees, agents and guests during any Agency event that may be sponsored by Advertiser.

6. PAYMENT 
(a) We reserve the right to cancel any contract and/or alter terms of payment: (1.) if any bill is not paid when due; (2.) if the advertiser and/or advertising agency becomes insolvent, makes an assignment for the benefit of creditors, is adjudged a bankrupt, or a receiver of the property or business of the advertiser and/or advertising agency is appointed, or if the advertiser and/or advertising agency shall file a petition seeking relief as a debtor under the federal bankruptcy act, or if a petition is filed against the advertiser and/or advertising agency for reorganization under said act, or for adjudication of bankruptcy; (3.) for any other cause considered sufficient by us.

7. AMENDMENTS; WAIVERS; RATE CHANGES 
(a) Waiver of any term of this Agreement or failure of Agency to terminate this Agreement on account of any breach by Advertiser shall not be deemed a waiver of Agency’s rights to subsequently enforce any term or to terminate this Agreement by reason of any subsequent breach by Advertiser. No waiver by either party on any one occasion shall extend to or effect or be construed as a waiver of any right or remedy on any future occasion or with respect to any prior occasion. No course of dealing of any person nor any delay or omission in exercising any right or remedy shall constitute an amendment of this Agreement or a waiver of any right or remedy of any party hereto.

(b) Except as set forth in subsection (c) of this Section 7, no amendment of any term, provision or condition of this Agreement shall be effective, unless in a writing executed by each of the parties hereto that specifically refers to this Agreement.

(c) Agency shall have the right to revise the advertising rates set forth in this Agreement at any time upon notice to Advertiser of such rates. Advertiser may terminate this Agreement on the date the new rates become effective by giving written notice within 30 days of such termination. In the event of such termination, Advertiser shall be liable for Advertising published prior to such termination at the Current Agreement Rate. “Current Agreement Rate” is defined as the billing rate in effect at the time of publication.

8. TERMINATION OF AGREEMENT; EFFECT OF TERMINATION 
(a) Agency shall have the right to terminate this Agreement at any time, with or without notice to Advertiser, for Advertiser’s failure to remit payment for invoices by the due date of such bills.

(b) Subject to the terms of subsection (e) of this Section 8, Advertiser shall have the right to terminate this Agreement at any time by written notice to Agency.

(c) Agency shall have the right to terminate this Agreement for any reason and at any time by written notice to Advertiser, in which event and so long as Advertiser has been meeting its revenue, volume or other commitment to Agency over time in a way that is consistent with Advertiser reaching its final commitment, Advertiser shall be liable for advertising prior to such termination at the Current Agreement Rate.

(d) Except for a termination under Section 7 above, in the event the Agreement is terminated or for any other reason Advertiser fails to purchase during the term of the Advertising Agreement the advertising generating the revenue, volume or other commitment due to Agency, Advertiser immediately shall pay to Agency the lesser of the following:

(i) the original commitment made to Agency under the Advertising Agreement or

(ii) an amount for all advertising published during the term including advertising previously billed (“Amount Due”), adjusted for space, inserts and color actually used. The unpaid balance of such adjusted Amount Due shall be based upon the “Actual Rate Earned” for advertising during the term. The “Actual Rate Earned” is defined as the rate which would have been payable by Advertiser if the amount of advertising actually purchased during the term had been contracted for in the first instance, and such Actual Rate Earned shall be ascertained by reference to the applicable Agency rate card in effect on the date that the advertising was published.

9. INTEGRATION 
Advertiser agrees that no representations of any kind have been made to Advertiser by Agency or by any of its agents and that no understanding has been made or agreement entered into other than as set forth herein.

10. FORCE MAJEURE 
Agency shall not be liable for failure to publish or distribute any advertisement because of strikes, labor disputes, government action, war, fire, breakdown of equipment, terrorist act, or any other cause beyond its reasonable control.

11. OTHER SERVICES 
Except as stated otherwise, payments by Advertiser to Agency for services or goods other than advertising space, inserts and color shall not be applied toward any revenue totals set forth in the Agreement.

12. COLLECTIONS 
Advertiser shall be liable for all costs incurred by Agency, including but not limited to attorneys’ fees and expenses, in collecting past due accounts and in defending any and all claims asserted in the action.

13. TAXES
Any and all taxes levied against advertising shall be added to the advertising charges, including but not limited to any sales taxes.

14. PREPARATION OF ADVERTISING 
Advertiser represents and warrants that it is familiar with all laws and regulations applicable to its advertisement(s), and that advertising material submitted to Agency shall be in compliance with such laws and regulations.

On request, Agency may assist Advertiser in preparing its advertisement(s) for publication. This assistance may include design, composition, text and artwork. Agency does not assume any obligations to perform a legal review of Advertiser’s advertisement(s). Advertiser remains solely responsible for the contents of the advertisement(s) and for compliance with any laws regulating such advertising.

15. ASSIGNMENT 
This Agreement and the rights and obligations hereunder are personal to Advertiser and may not be assigned by any act of Advertiser or by operation of law, change of control of Advertiser or otherwise without the prior written consent of Agency, to be granted or not granted in Agency’s sole and absolute discretion. Advertiser may not assign to, nor utilize for the benefit of another person or entity, any of the lineage required to be purchased by Advertiser without Agency’s prior written consent, to be granted or not granted in Agency’s sole and absolute discretion.

16. SEVERABILITY 
If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision, and such invalid or unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth in this Agreement. To the full extent, however, that the provisions of any applicable law may be waived, they are hereby waived to the end that this Agreement be deemed a valid and binding agreement enforceable in accordance with its terms.

17. JOINT AND SEVERAL LIABILITY OF ADVERTISING PARTY AND ADVERTISING AGENCY
Advertising Party and Advertising Agency are each hereby obligated, jointly and severally, to pay any and all amounts owed to Agency, as and when the same shall become due and payable, in accordance with the terms hereof. All written agreements between Advertising Party and Advertising Agency, shall include provisions whereby each such party agrees that Agency has a right to recover any and all amounts owed hereunder from either such party directly. Agency shall be a third-party beneficiary of all such agreements. Agency is hereby irrevocably appointed as each of Advertising Agency’s and Advertising Party’s attorney-in-fact, coupled with an interest, with exclusive power to collect, receive and retain any amounts owing from Advertising Party to Advertising Agency, or Advertising Agency to Advertising Party, as the case may be, pursuant to such agreements and Agency shall retain such amounts to offset amounts due hereunder. Each of Advertising Agency and Advertising Party shall immediately upon receipt pay directly to Agency any and all amounts that it receives from Advertising Party or Advertising Agency, as the case may, for payment of amounts owed pursuant to this Agreement.

18. REPRESENTATIONS AND WARRANTIES 
Each of Advertising Party and Advertising Agency, hereby represents and warrants to Agency:

(a) It is duly incorporated or formed, as the case may be, validly existing and in good standing under the laws of the state of its incorporation or formation, as the case may be, and has all requisite power to own, lease and operate its property and to carry on its business as now being conducted.

(b) All action on the part of such party necessary for the authorization, execution and delivery of, and the performance of all of its obligations under, this Agreement has been duly taken. This Agreement constitutes a valid and binding obligation of such party, enforceable against it in accordance with its terms.

(c) The execution and delivery by such party of this Agreement do not, and the consummation of the transactions contemplated hereby will not, (i) violate or conflict with the organizational documents of such party or (ii) constitute a material breach or default or give rise to any lien or other encumbrance, third-party right of termination, cancellation, material modification or acceleration under any material agreement, understanding or undertaking to which it is a party or by which it is bound, or violate or conflict with any applicable law.

(d) All written agreements between Advertising Party and Advertising Agency include provisions whereby each such party agrees that Agency has a right to recover any and all amounts owed hereunder from either such party directly.

(e) Advertising Agency is authorized and has the power to (i) enter into this Agreement on behalf of or in the name of Advertising Party and (ii) bind Advertising Party to this Agreement without the prior written consent of Advertising Party.

(f) Advertising Party is authorized and has the power to (i) enter into this Agreement on behalf of or in the name of Advertising Agency and (ii) bind Advertising Agency to this Agreement without the prior written consent of Advertising Agency.

19. ADVERTISER SPONSORSHIPS
To the extent that the insertion order includes Advertiser’s sponsorship of a Agency event, Advertiser additionally agrees to the following terms:

(a) Advertiser will provide any gift bag items, as well as materials or staffing for any on-site display/sampling area in the Insertion Order, subject to Agency’s approval. Advertiser represents and warrants that it shall obtain all necessary permissions and releases for all sponsorship materials, gift bag items, and sample or other promotional items to be provided by it, including the distribution and/or display thereof.

(b) Notwithstanding anything to the contrary in this Agreement, the sponsorship fee set forth in the Agreement is non-refundable, except as otherwise provided in section 19(c).

(c) Notwithstanding sections 8(c) and 8(d) of these terms, the only termination rights of either party shall be as follows: (i) by either party, if the other party fails to either discharge any obligation or remedy any default under this Agreement for a period of more than five (5) business days after written notice has been given to the defaulting party specifying such failure or default; and (ii) by Agency, effective immediately, if Advertiser ceases operation for any reason, or the event is canceled for any reason. If the event is cancelled, Agency will refund on a pro rata basis, as determined by Agency, the portion of the sponsorship fee not attributable to sponsorship benefits already received.

(d) Advertiser shall seek the prior written approval of Agency for any use of Agency’s name and logo. Advertiser shall immediately cease using Agency’s name and logo upon completion of the event or the earlier termination of the sponsorship or this Agreement.

(e) Advertiser represents and warrants that during the term of this Agreement, it shall maintain in force a policy of general liability insurance in connection with the event in the amount of at least $2,000,000 per occurrence, which shall cover Advertiser from any loss resulting from the risks therein. Such policy shall name Agency as an additional insured and shall state that it may not be canceled or terminated without thirty (30) days prior written notice to Agency. A certificate of insurance shall be provided to Agency upon the execution of this Agreement.

Copyright © 2013, Heavenspot, Inc.