FUN THINGS, INC.
ADVERTISING TERMS AND CONDITIONS
These Advertising Terms and Conditions (“Advertising Terms”) are between Fun Things, Inc., a Delaware corporation (“Fun Things”) and any advertiser (“Advertiser”) who registers to use the Fun Things mobile advertising platform and related services (“Fun Things Services”, as further defined below) to market Advertiser’s business (“Advertiser Business”) to end users of Fun Things’ mobile application (“End Users”). These Advertising Terms are a legally binding contract between Fun Things and Advertiser regarding Advertiser’s use of the Fun Things Services.
PLEASE READ THE FOLLOWING ADVERTISING TERMS CAREFULLY. BY ACCEPTING, YOU, THE PERSON AGREEING TO THESE TERMS ON BEHALF OF ADVERTISER, ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE ON BEHALF OF ADVERTISER TO BE BOUND BY THE FOLLOWING ADVERTISING TERMS. If you are not eligible, or do not agree to these Advertising Terms, then you must not register for the Fun Things Services.
1. FUN THINGS SERVICE
1.1 Listing Service. Subject to the terms and conditions of these Advertising Terms, Fun Things will store the information regarding the Advertiser Business that was provided to Fun Things in the internal directory of the Fun Things mobile advertising application (“Fun Things App”). The Advertiser Information will periodically be displayed to End Users of the Fun Things App who are in the geographic vicinity of the Advertiser Business (“Listing Service”).
1.2 Push Service. If selected by Advertiser, Fun Things will prioritize (i.e. “push”) specials, promotions and advertisements related to the Advertiser Business to End Users of the Fun Things App who are in the geographic vicinity of the Advertiser Business (“Push Service”). These Advertising Terms will refer to the Push Service and Listing Service collectively as the “Fun Things Services”.
1.3 Positioning. Positioning and display of all Advertiser Material within the Fun Things App is at the sole discretion of Fun Things.
1.4 Control Rights. Fun Things reserves the right to determine the design, content, functionality, availability, and all other aspects of the Fun Things Services and may assign any of its rights or delegate any of its responsibilities. Fun Things may at any time change any aspect of the Fun Things App or the Fun Things Services and may limit or cancel any listing in the Fun Things App.
1.5 Limited License to Advertiser Materials. Advertiser grants to Fun Things a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.2), non-sublicensable, royalty-free right during the term of these Advertising Terms to use, copy, reproduce, transmit, display, and publicly perform the Advertiser Materials in providing the Fun Things Services under these Advertising Terms.
1.6 Prohibited Advertiser Materials. Advertiser must not submit any information, images or other materials to be used in the Fun Things Services (“Advertiser Materials”) containing any material: (a) that is obscene, defamatory, libelous, threatening, pornographic, harassing, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, or violate any law; (b) that violates, or that causes us or our affiliates, subsidiaries, or partners to violate, any applicable law, regulation, or order of any governmental authority in any jurisdiction; (c) that infringes or violates, or that may infringe or violate, any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, or that Advertiser otherwise does not have the right to make available to Fun Things; (d) that is false or misleading; or (e) that, in Fun Things’s sole judgment of, is objectionable or which may expose Fun Things or any person to harm or liability of any nature. Fun Things may reject any Advertiser Material submissions in its sole discretion.
2. USE OF THE FUN THINGS PLATFORM
2.1 Access to the Fun Things Platform. Fun Things will provide to Advertiser [usernames and passwords] that will allow Advertiser to log into the web platform that will allow Advertiser to submit Advertiser Materials to be used in the Push Service (“Fun Things Platform”). Advertiser will not provide the usernames or passwords to any third party, and will not, directly or indirectly, permit or allow any unauthorized access to or use of the Fun Things Services.
2.2 License to the Fun Things Platform. Subject to the terms and conditions of these Advertising Terms, Fun Things grants to Advertiser a limited, worldwide, non-exclusive, non-transferable right during the term of these Advertising Terms to access and use the Fun Things Platform solely to provide Advertiser Materials to Fun Things to be used in the Push Service.
2.3 End Users; Promotions. Advertiser acknowledges and agrees that Advertiser is solely responsible for procurement and fulfillment of any offers, specials, promotions, prizes, give-aways, or other incentives offered by Advertiser to End Users of the Fun Things App, and Advertiser will promptly procure and fulfill offers, specials, promotions, prizes, give-aways, or other incentives advertised using the Fun Things Services.
2.4 Use Restrictions. Except as otherwise explicitly provided in these Advertising Terms or as may be expressly permitted by applicable law, Advertiser will not, and will not permit or authorize third parties to: (a) modify or reverse engineer any portion of the Fun Things Platform, or circumvent or disable any security or other technological features or measures of the Fun Things Platform; (b) make rent, lease, or otherwise permit third parties to use the Fun Things Platform; (c) use the Fun Things Platform to provide services to third parties (e.g., as a service bureau); nor (d) circumvent or disable any security or other technological features or measures of the Fun Things Platform.
2.5 Protection Against Unauthorized Use. Advertiser is responsible for all activity associated with its Fun Things Platform accounts. Advertiser will use its best efforts to prevent any unauthorized use of the Fun Things Services and immediately notify Fun Things in writing of any unauthorized use that comes to Advertiser’s attention. If there is unauthorized use by anyone who obtained access to any Fun Things Service directly or indirectly through Advertiser, Advertiser will take all steps reasonably necessary to terminate the unauthorized use. Advertiser will cooperate and assist with any actions taken by Fun Things to prevent or terminate unauthorized use of any Fun Things Service.
2.6 Compliance with Laws. Advertiser’s use of the Fun Things Services and access to the Fun Things Platform must be in compliance with all applicable laws and regulations, and Advertiser will refrain from any unethical conduct or any other conduct that tends to damage the reputation of Fun Things.
2.7 No Warranties. Advertiser will not make or publish any representations, warranties, guarantees or commitments on behalf of Fun Things concerning any matter whatsoever.
3. FEES AND PAYMENT
3.1 Fees and Payment Terms
(a) Advertiser will pay all applicable fees and other amounts payable in connection with the Fun Things Services as indicated on the Fun Things order page, without offset. Advertiser authorizes Fun Things to charge the credit card information provided on the order page plus any applicable sales, use, excise, or other taxes. All amounts payable under these Advertising Terms are non-refundable. Fun Things shall not have any obligation to perform any Fun Things Services until full payment is received from Advertiser.
(b) Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Advertiser will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Fun Things to collect any amount that is not paid when due. Amounts due from Advertiser under these Advertising Terms may not be withheld or offset by Advertiser against amounts due to Advertiser for any reason.
3.2 Taxes. Other than federal and state net income taxes imposed on Fun Things by the United States, Advertiser will bear all taxes, duties, withholding taxes, and other governmental charges resulting from these Advertising Terms.
4. TERM AND TERMINATION
4.1 Term. These Advertising Terms will commence upon the Effective Date and continue for the duration of the engagement time ordered as part of the Listing Service.
4.2 Termination. Advertiser may at any time terminate its account or use of any Fun Things Service. Fun Things may at any time terminate these Advertiser Terms or suspend or terminate any Fun Things Service, or Advertiser’s use of them.
4.3 Post-Termination Obligations. If these Advertising Terms or any licenses in these Advertising Terms are terminated for any reason: (a) Advertiser will pay to Fun Things any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination; (b) any credits, pushes or remaining engagement time accumulated by Advertiser through use of the Services will expire; and (c) any and all liabilities accrued prior to the effective date of the termination will survive.
5. WARRANTIES AND DISCLAIMER
5.1 Advertiser Warranties. Advertiser represents and warrants to Fun Things that: (a) these Advertising Terms have been duly executed and delivered and constitutes a valid and binding agreement enforceable against Advertiser in accordance with its terms; (b) no authorization or approval from any third party is required in connection with Advertiser’s execution, delivery, or performance of these Advertising Terms; (c) the execution, delivery, and performance of these Advertising Terms do not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which Advertiser bound; (d) Advertiser will comply with all applicable laws in connection with these Advertising Terms; (e) the exercise by Fun Things of the rights granted under these Advertising Terms to Advertiser Materials as provided by Advertiser does not, and will not, infringe any intellectual property rights, privacy rights, or other rights of any third party or give rise to any obligation for the payment of any sums to any third party by Fun Things or any of its affiliates; (f) the Advertiser Materials will comply with all reasonable requirements communicated in writing to Advertiser by Fun Things; and (g) the Advertiser Materials will not contain any material which is libelous, slanderous, defamatory, obscene, or indecent and will not, when used by Fun Things, subject Fun Things to liability that violates any law, rule, or regulation or guideline.
5.2 Fun Things Disclaimer. FUN THINGS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. FUN THINGS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. FUN THINGS DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE FUN THINGS SERVICES OR AGAINST INFRINGEMENT. FUN THINGS DOES NOT WARRANT THAT THE FUN THINGS SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE FUN THINGS SERVICES WILL BE SECURE OR UNINTERRUPTED. FUN THINGS EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE ADVERTISER’S USE OF THE FUN THINGS SERVICES, INCLUDING THE RESULTS OF ANY ADVERTISER’S OR END USER’S USE OF THE FUN THINGS SERVICE. ADVERTISER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF FUN THINGS TO ANY THIRD PARTY.
6.1 Defense by Advertiser. Advertiser will defend Fun Things from any actual or threatened third party claim arising directly or indirectly arising out of or relating to any third party claim concerning Advertiser’s use of any Fun Things Service (including use by Advertiser’s employees, contractors, or agents), Advertiser’s breach of any provision of these Advertising Terms, or any products or services Advertiser offers. Fun Things will: (a) give Advertiser prompt written notice of the claim; (b) grant Advertiser full and complete control over the defense and settlement of the claim; (c) assist Advertiser with the defense and settlement of the claim as Advertiser may reasonably request and at Advertiser’s expense; and (d) comply with any settlement or court order made in connection with the claim.
6.2 Indemnification by Advertiser. Advertiser will indemnify Fun Things against: (a) all damages, costs, and attorneys’ fees finally awarded against Fun Things in any proceeding under Section 6.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Fun Things in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Advertiser’s consent after Advertiser has accepted defense of such claim); and (c) if any proceeding arising under Section 6.1 is settled, Advertiser will pay any amounts to any third party agreed to by Advertiser in settlement of any such claims. This Section 6.2 will apply regardless of any insurance coverage held by Fun Things or any affiliate.
7. LIMITATIONS OF LIABILITY
7.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE ADVERTISING TERMS, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THESE ADVERTISING TERMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
7.2 Cap on Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THESE ADVERTISING TERMS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE ADVERTISING TERMS, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY ADVERTISER TO FUN THINGS UNDER THESE ADVERTISING TERMS IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
7.3 Independent Allocations of Risk. EACH PROVISION OF THESE ADVERTISING TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE ADVERTISING TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FUN THINGS TO ADVERTISER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE ADVERTISING TERMS. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE ADVERTISING TERMS.
8.1 Relationship. Fun Things is an independent contractor (and not an agent or representative of Advertiser) in the performance of these Advertising Terms. These Advertising Terms will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting Fun Things’ performance of any services for any third party or the provision of products to any third party.
8.2 Assignability. Advertiser may not assign its right, duties, or obligations under these Advertising Terms without Fun Things’ prior written consent. If consent is given, these Advertising Terms will bind Advertiser’s successors and assigns. Any attempt by Advertiser to transfer its rights, duties, or obligations under these Advertising Terms except as expressly provided in these Advertising Terms is void. Fun Things may assign these Advertising Terms without Advertiser’s consent.
8.4 Force Majeure. Fun Things will not be liable for, or be considered to be in breach of or default under these Advertising Terms on account of, any delay or failure to perform as required by these Advertising Terms as a result of any cause or condition beyond Fun Things’ reasonable control, so long as Fun Things uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
8.5 Governing Law. These Advertising Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Nevada, U.S.A. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state, and local courts in Nevada in connection with any action arising out of or in connection with these Advertising Terms.
8.6 Waiver. The waiver by either party of any breach of any provision of these Advertising Terms does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Advertising Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Advertising Terms.
8.7 Severability. If any part of these Advertising Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Advertising Terms will remain in full force and effect. If any material limitation or restriction on the use of the Fun Things Services under these Advertising Terms is found to be illegal, unenforceable, or invalid, Advertiser’s right to use the Fun Things Services will immediately terminate.
8.8 Interpretation. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in these Advertising Terms have been inserted for identification and reference purposes only and must not be used to construe or interpret these Advertising Terms. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders.
8.9 Entire Agreement. These Advertising Terms, including all schedules and exhibits, is the final and complete expression of the agreement between these parties regarding the Fun Things Services. These Advertising Terms supersede, and the terms of these Advertising Terms govern, all previous oral and written communications regarding these matters, all of which are merged into these Advertising Terms, except that these Advertising Terms do not supersede any prior nondisclosure or comparable agreement between the parties executed prior to these Advertising Terms being executed. No employee, agent, or other representative of Fun Things has any authority to bind Fun Things with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in these Advertising Terms. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of these Advertising Terms. Fun Things will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to these Advertising Terms (whether or not it would materially alter these Advertising Terms) that is proffered by Advertiser in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Fun Things specifically agrees to such provision in writing and signed by an authorized agent of Fun Things.