Terms and Conditions of Subscription
These Terms of Subscription together with the Advertising Subscription Agreement form the Agreement between City Keyosk and Advertiser (the “Parties” and each a “Party”) regarding Advertiser’s purchase of the services set forth in the Advertising Subscription Agreement and as further described and provided for in these Terms and Conditions. Capitalized terms not defined in these Terms and Conditions have the meanings given them in the Advertising Subscription Agreement.
1. Services. The requirements of the Kiosk Advertising Service are a) to display a categorized link to an Advertisement on (a) publicly accessible computer(s) to be placed in various public venues, heretofore known as a Keyosk . and b) to display an advertisement, approved by Advertiser, on said Keyosk(s). During the Term City Keyosk will display the Advertisement (as described in the Advertising Subscription Agreement) on the Keyosk(s). City Keyosk makes no representation or warranty regarding the other advertisers that are shown on the website and/or in the same rotating ad location.
2. Fees. Fees are due on the first (1st) day of each consecutive month of the Term and must be sent to City Keyosk at the address listed in the Advertising Subscription Agreement. Unpaid or late Fees shall accrue interest at the rate of one and one-half percent (1.5%) per month. City Keyosk may suspend providing the services under the Agreement in the case of nonpayment or late payment, without terminating the Agreement. Fees are not refundable or prorated once the advertisement has been posted to the website for the agreed monthly term.
3. Advertisement. Advertiser grants City Keyosk a non-exclusive, non-transferable, royalty-free license to display the Advertisement for purposes of the Agreement. At all times during the Term, Advertiser covenants, represents, and warrants the Advertisement shall not: (a) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation; (c) be defamatory or libelous; (d) be pornographic or obscene or inconsistent with the purpose of the Website; (e) violate any laws regarding unfair competition, antidiscrimination or false advertising; or, (e) contain viruses, or other similar harmful or deleterious programming routines. Advertiser shall be solely responsible for delivering the Advertisement or advertisement elements to City Keyosk. The advertisement elements are the images, logos, taglines, and/or creative content used to compile a complete advertisement. City Keyosk may refuse to display an Advertisement it determines in its sole discretion does not fit the intent and content of the website and/or violates this Agreement.
4. Deletions & Modifications of Advertisement Information. During the term of the Advertisement should any of the advertisement information change, the Advertiser shall contact and inform City Keyosk through the website, of any changes. Should it be determined and verified by City Keyosk that the Advertiser is no longer in business and/or providing the advertisement product and/or service, City Keyosk shall then have the right without any liability to remove the advertisement from the Keyosk.
5. Link. At all times during the Term, Advertiser covenants, represents, and warrants: a) its advertisement elements do not infringe or violate the copyright, trademark, or other rights of third parties, or any other law, court order, governmental regulation or other ruling of any governmental agency or entity; b) linking to Advertisers website via ‘QR code’ or other means will not subject City Keyosk to any liability or jeopardize City Keyosk’s ability to protect its rights or its property in the manner it deems appropriate; and, c) no part of its website will contain, or link to, content that may be interpreted as criminal, libelous, or obscene or which may infringe or violate any third party’s rights.
6. Warranty disclaimer. City Keyosk provides the Kiosk Advertising Service and services under the Agreement “As Is” and without warranty of any kind. City Keyosk does not guarantee continuous or uninterrupted display or distribution of the Advertisement. In the event of interruption, City Keyosk’s sole obligation shall be to restore service as soon as reasonably possible. City Keyosk makes no representation or warranty regarding the number of views.
7. Liability limitation. In no event shall City Keyosk be liable for any consequential, incidental, indirect, punitive, or special damages or for lost business or profits related to the Agreement. In no event shall City Keyosk’s liability to Advertiser exceed the Fees actually paid under the Agreement.
8. Termination. This Agreement will terminate upon the expiration of the Term. Also, the Parties may terminate the Agreement by mutual written consent. Otherwise, either Party may terminate the Agreement: (a) if the other Party makes a general assignment for the benefit of its creditors, is generally unable to pay its debts as they become due, or becomes the subject of any voluntary or involuntary bankruptcy proceeding; or (b) in the case of a material breach on the part of the other Party, provided the non-breaching Party first notifies the breaching Party of the material breach(es) and affords the breaching Party ten (10) business days to cure the breach(es), failing which the Agreement shall be deemed terminated upon the expiration of this ten (10) business day period.
9. Miscellaneous. Montana law will govern the Agreement. The Parties will maintain the fact of and terms of the Agreement as strictly confidential. No Party may assign the Agreement without the other’s express written consent; however, City Keyosk may assign its rights and obligations under the Agreement to an affiliate, related, or subsidiary company in the normal course of business or in connection with a sale of City Keyosk or of all or substantially all of City Keyosk’s assets. Any other assignment shall be void and without force or effect. The Parties shall arbitrate any dispute regarding the Agreement before the municipal court in Great Falls, MT, with the prevailing Party to recover its costs and fees. This Agreement is the entire and only agreement between the Parties regarding its subject matter, and all prior agreements between or among the Parties and related to the subject matter of the Agreement are of no force or effect. The individuals signing the Agreement (Purchase Order) personally represent, warrant, and covenant they have the authority to bind to the Agreement the Party on whose behalf they are signing it. Neither Party makes any representation, covenant, or warranty except as expressly set forth in the Agreement. This Agreement will not be construed against either Party by virtue of that Party having written all or any part of the Agreement. The Parties have had an opportunity to have counsel of their choosing review the Agreement. The failure on the part of a Party to enforce a term or provision of the Agreement will not constitute a waiver of the right to later enforce that provision. The Parties may not amend the Agreement except in a writing signed by both of them. The Parties may execute the Agreement in counterparts. Faxed or electronically stored executed copies of the Agreement will be regarded as originals of the Agreement. No third party may claim any rights under the Agreement.