These Internet Advertising Terms and Conditions ("T&C’s") apply to any insertion order ("Insertion Order") submitted to and accepted by US Airways, Inc. ("US Airways") from any advertiser or agent of advertiser (collectively, "Advertiser"). US Airways and Advertiser are collectively referred to as the "Parties." The T&C's and the Insertion Order are collectively referred to as the "Advertising Agreement" or "Agreement."
- a. Services - US Airways will use commercially reasonable efforts to display the advertisement ("Online Ad") as specified in Insertion Order throughout the term of this Agreement (the "Services").
- b. Delivery and Performance - Advertiser shall deliver the Online Ad to US Airways in such file formats and on such media as specified in Insertion Order at least five (5) business days before the scheduled Start Date specified in the Insertion Order. Advertiser shall be solely responsible for providing the Online Ad in the format required for display. Advertiser acknowledges that US Airways shall not be responsible for any delays in the posting or display of the Online Ad due to Advertiser’s failure to deliver the Online Ad in substantial conformance with Insertion Order and this Section 1(b).
Interruption of Services
Advertiser agrees that from time to time US Airways may not display the Online Ad as scheduled in Insertion Order, or the Site may be inaccessible or inoperable, for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which US Airways may undertake from time to time; or (iii) causes beyond the control of US Airways and which are not reasonably predictable by US Airways, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks and network congestion or other failures. Such interruption of Services will not be deemed a breach of the Advertising Agreement or any provision thereof.
Solely in connection with this Agreement, Advertiser grants to US Airways a limited, non-transferable, non-exclusive, worldwide license, for the term of this Agreement to: (a) copy, use, store, publicly display, publicly perform and transmit the Online Ad; (b) incorporate the hypertext reference links of the Online Ad; and (c) display Advertiser’s trade names, trademarks or service marks in the Online Ad.
- a. US Airways ownership - Except as provided in Section 4(b), Advertiser acknowledges that the US Airways website(s), including, without limitation, all trade names, trademarks, service marks, content, text, images, software, media and other materials therein, is a work or collective work, proprietary to or licensed by US Airways, protected under copyright, trademark and other intellectual property laws, whether or not developed by US Airways or any other person.
- b . Advertiser ownership - Advertiser retains all right, title and interest (including copyright and other proprietary or intellectual property rights) in the content of the Online Ad, Advertiser’s trade names, trademarks and service marks therein and all legally protectable elements, derivative works, modifications and enhancements thereto, whether or not developed by Advertiser or any contractor, subcontractor or agent for Advertiser.
US Airways reserves the right, at any time and in US Airways’s sole discretion, to refuse to display the Online Ad or any portion thereof that: (a) fails to conform to the format and technical specifications set forth at Insertion Order; (b) may constitute or is the subject of a notice or claim of any Lanham Act violation, false designation of origin, false advertising or unfair competition under the law of any jurisdiction; (c) contains or is alleged to contain any content, work, name, mark, designation, materials or link that actually or potentially violates any applicable law or regulation or infringes any proprietary, intellectual property, contract or tort right of any person; (d) contains any content, work, name, mark, designation, materials or link that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (e) contains any spyware, web bug, web beacon or any similar hidden or transparent code, script, or routine designed to gather or track information about US Airways or the users of the US Airways website(s); or (f) US Airways determines may be detrimental to its corporate image.
Fees and payment
- a. Fees - Advertiser shall pay US Airways advertising fees in the amounts set forth in Insertion Order (“Fees”), due and payable at the times and in the amounts stated in Insertion Order.
- b. Taxes - Advertiser shall be solely responsible for and shall pay all sales, use, service or other taxes, duties or levies of any governmental entity (exclusive of taxes on US Airways’s net income), including interest and penalties thereon, if any, relating to the Services, whether or not stated in any invoice to Advertiser.
- c. Interest and Collection - Advertiser agrees that thirty (30) days after the end of each calendar quarter, any unpaid Fees shall accrue interest at the lesser of the U.S. Prime Rate of interest plus 3% per month or the maximum interest allowable under applicable law and Advertiser shall thereafter pay all such interest in addition to any Fees due. Advertiser shall pay all costs of collection, including reasonable attorney’s fees and costs in the event any collection effort or action is required to collect the Fees.
Warranties and disclaimer
a. Advertiser Warranty - Advertiser warrants to US Airways that: (i) Advertiser has the right and authority to enter into and perform its obligations under this Agreement; (ii) the Online Ad shall conform to the description and specifications set forth in Insertion Order; (iii) the Online Ad shall not constitute or be the subject of a notice or claim of any false designation of origin, false advertising or unfair competition under the law of any jurisdiction; (iv) the Online Ad does not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials or link that actually or potentially violates any applicable law or regulation, or infringes any proprietary, intellectual property, contract or tort right of any person or misappropriates a person's trade secret, name, likeness or identity; (v) the Online Ad does not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials or link that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (vi) the Online Ad contains no viruses, worms, malicious code, trap doors, back doors, timers, clocks, counters, FTP servers, or other limiting routines, instructions or designs, and no web beacons, web bugs, spyware or other similar hidden or transparent code, script, or routine designed to gather, track or transmit information about US Airways or the users of the US Airways website(s); and (vii) Advertiser owns the Online Ad and all intellectual property rights therein, or has the right to grant the license to US Airways herein and authorize the worldwide copying, display and transmission of the Online Ad content.
b. US Airways Warranty - US Airways represents and warrants to Advertiser that: (i) US Airways has the power and authority to enter into and perform its obligations under this Agreement; and (ii) US Airways shall perform its obligations under this Agreement in a commercially reasonable manner.
c. Disclaimer - THE SERVICES AND SITE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. PROVISION AND/OR USE OF THE SERVICES OR SITE ARE AT ADVERTISER’S SOLE RISK. US Airways DOES NOT WARRANT THAT THE SERVICES OR SITE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES US Airways MAKE ANY WARRANTY AS TO THE PERFORMANCE OR ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES OR SITE. EXCEPT AS EXPRESSLY STATED AT SECTION 8(b), US Airways MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT.
Exclusive remedy and limitation of liability
If US Airways breaches its warranties in this Agreement, such that it fails to display the Online Ad substantially in accordance with the schedule provided in Insertion Order, then Advertiser’s exclusive remedy, to be determined at US Airways’s sole discretion, will be any one of the following: (i) a pro rata refund of the Fees paid to US Airways; (ii) the placement of a mutually acceptable substitute Online Ad at a later time and in a comparable position on the Site to be determined by US Airways; or (iii) an extension of the Term of this Agreement equal to the duration of the failure. US Airways will have no liability or obligation to provide any of the foregoing exclusive remedies if the failure is caused by matters beyond its control, including without limitation, failures resulting from governmental action, fire, flood, earthquake, riot, war, acts of terrorism, strikes, labor work slowdowns and stoppages, and the actions or inaction of the Advertiser, or if the failure is a result of any matter described in Section 2.
IN NO EVENT SHALL US Airways BE LIABLE TO ADVERTISER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF US Airways HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL US Airways'S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID TO US Airways BY ADVERTISER HEREUNDER.
Advertiser agrees to indemnify, hold harmless and defend US Airways and its directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney’s fees, arising from or relating to: (i) the content of the Online Ad; (ii) any negligence or willful misconduct of Advertiser; (iii) any breach of Advertiser’s warranties under Section 8(a); (iv) Advertiser's goods or services that are promoted, offered, sold, or made available to users through the Online Ad; and (v) any material to which users can link through the Online Ad. Advertiser agrees that US Airways shall have the right to participate in the defense of any such claim through counsel of its own choosing. Advertiser further agrees that any compromise or settlement of such disputes will contain a complete, express and unconditional release of US Airways.
Term and termination
- a. Term - The term of this Agreement shall commence on the date upon which the Insertion Order is accepted by US Airways and will continue through the End Date specified in the Insertion Order, unless sooner terminated as provided in this Agreement.
- b. Termination - This Agreement may be terminated: (i) by either party upon 30 days written notice to the other party in the event of a material breach of this Agreement by the other party that remains uncured; (ii) by either party in the event a party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against such party, or if a receiver or trustee is appointed for all or any part of the property or assets of such party; (iii) by US Airways for no cause, immediately upon notice to Advertiser; or (iv) by a written agreement executed by the Parties.
- c. Return and Destruction - Upon any termination or expiration of this Agreement, US Airways may retain the original or copies of the Online Ad for dispute resolution purposes or in the event of any claim or dispute concerning the Online Ad or Services.
- d. Payment Upon Termination - In the event this Agreement is terminated, Client shall pay US Airways for all Services undertaken in performance of its obligations hereunder up to the date of termination and will also pay an early termination fee equal to 50% of the remaining commitment made by Advertiser as specified in the Insertion Order. Such payment is due and payable within 30 days following such termination.
- a. Independent Contractors - The Parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- b. Assignment - Advertiser may not assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in part without the prior written consent of US Airways.
- c. Waiver - No waiver of any provision or of any right or remedy shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy shall constitute a waiver of any other right or remedy, or future exercise of it.
- d. Severability - If a court of competent jurisdiction determines that any part of the Agreement is invalid or unenforceable, then the invalid or unenforceable part will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original part and the remainder of the Agreement shall continue in effect.
- e. Notice - All notices shall be in writing and shall be deemed to be delivered when received by Certified Mail, postage prepaid, Return Receipt Requested. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party.
- f. Amendment - No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both Parties.
- g. Governing Law and Venue - This Agreement is made in and shall be governed in all respects by the laws of the State of Arizona without regard to its conflict of laws principles. Advertiser consents to and waives any objections to the exclusive personal jurisdiction of the State and federal courts in Maricopa County, Arizona for the determination of any claim or controversy arising out of or relating to the Agreement. Advertiser waives any objections to venue in such courts due to inconvenient forum or any other basis.
- h. Survival - The definitions in the T&C’s and the respective rights and obligations of the parties under Sections 4, 5, 6, 7(c), 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.
- i. Entire Agreement - The T&C’s, together with Insertion Order, which is incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. If any provision of the Insertion Order conflicts irreconcilably with a provision of the T&C’s, the Insertion Order will control.