|By contracting with Visionamics, Inc. ("CityTwist"),
you hereby agree to the following:
1. Can-Spam Compliance Acknowledgment. Pursuant to the CAN-SPAM Act of
2003, you agree that you will ensure that the "From" line at the time of
delivery of the interactive email advertisement will be accurate in all particulars.
2. Restricted Transmissions. CityTwist prohibits, and may postpone,
cancel or otherwise return to you advertisements that violate the CityTwist Restricted
Transmission Policy, including advertisements and other mass communications of the
||Selling or offering to sell any
of the following products or content (or services related to the same): pornography or
illicitly pornographic sexual products, including but not limited to magazines, video and
software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated
computer programs; instructions on how to assemble or otherwise make bombs, grenades or
||Displaying or marketing material that
exploits children, or otherwise exploits children under 18 years of age.
||Selling or offering products, services or
content frequently associated with unsolicited commercial email, a.k.a. spam, such as
online and direct pharmaceutical sales, including but not limited to health and sexual
well-being products, work at home businesses, credit or finance management, including but
not limited to credit repair and debt relief offerings and stock and trading tips, and
mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making
and betting/gambling services, including but not limited to poker, casino games, horse and
dog racing and college and pro sporting events.
||Providing material that is grossly offensive,
including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity
or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise
||Posting or disclosing any personally
identifying information or private information about children.
||Selling or promoting any products or services
that are unlawful in the location at which the content is posted or received.
||Introducing viruses, worms, harmful code
and/or Trojan horses on the Internet.
||Promoting, soliciting or participating in
pyramid schemes or multi-level channel and/or network marketing (MLM) businesses,
including but not limited to personal work-at-home offers promoting "get rich
quick", "build your wealth" and "financial independence"
||Engaging in any libelous, defamatory,
scandalous, threatening, harassing activity.
||Posting any content that advocates, promotes
or otherwise encourages violence against any governments, organizations, groups or
individuals or which provides instruction, information or assistance in causing or
carrying out such violence.
||Providing content, including images, of
authors, artists, photographers or others without the express written consent of the
||Any such other advertisements or other
content that CityTwist determines inappropriate.
3. Rights of Re-Use and Grant of
License. As further consideration to employing CityTwist to provide the email
marketing services, you hereby authorizes CityTwist to republish the advertisements mailed
on your behalf (following the emailing of said advertisement) solely for CityTwist's
promotional purposes, and accordingly you hereby grants CityTwist a fully paid license in
perpetuity to CityTwist to republish advertisements emailed using the CityTwist platform
solely for CityTwist's promotional purposes.
4. Warranties & Limitation of Liability.
CityTwist hereby disclaims all warranties, including implied warranties of merchantability
or fitness for a particular purpose; provided, however, that notwithstanding the
disclaimer of warranties herein CityTwist does hereby warrant that in the provision of the
services contemplated herein that CityTwist complies with all laws and regulations
promulgated by the United States. Customer hereby warrants that it has reviewed its
advertisement in all particulars prior to being deployed, and that such advertisement does
not violate in any capacity the laws of the United States, or any individual State wherein
it is mailed (other than in regard to CityTwist's warranty described above). Except with
respect to the indemnification obligations detailed in paragraph 5 below, (i) each Party's
maximum liability under this Agreement shall be limited to the amount of Fees paid to
CityTwist under this Agreement; and (ii) neither Party shall be liable to the other for
any indirect, incidental, consequential, or special damages (including but not limited to
damages to business reputation, lost business, or lost profits), whether foreseeable and
however caused, even if advised of the possibility of such damages.
5. Indemnification. CityTwist shall protect, indemnify, hold harmless,
and defend Customer for claims arising pursuant to a breach by CityTwist of (i) the terms
and conditions herein, or (ii) its warranties. Customer shall protect, indemnify, hold
harmless, and defend CityTwist from claims brought (x) for breaches of the Terms and
Conditions herein, (y) pursuant to a breach of its Can-Spam Compliance duties pursuant to
paragraph 1 hereof, and (z) for breaches of the warranty above.
6. Intellectual Property. The Customer acknowledges
that CityTwist shall retain all right, title and interest under applicable contractual,
trade secret, trademark, copyright, patent and related laws in the CityTwist services, its
software, the CityTwist email database, and the CityTwist marketing materials; and
accordingly, Customer hereby specifically acknowledges and agrees that it will not use the
CityTwist services for purposes of gaining a competitive advantage against CityTwist, or
in any capacity to further efforts to reverse engineer same. The Customer acknowledges and
agrees that the CityTwist services are unique and the result of millions of dollars of
investment and years of development, and that any breach of CityTwist's rights in and to
the Intellectual Property would be irreparable. CityTwist hereby acknowledges and agrees
that the advertising plans, logos and other marks of the Customer are the property of the
Customer, and accordingly CityTwist shall not use such intellectual property other than in
the performance of the services described herein; provided, however, that CityTwist shall
be entitled to re-use the advertisements in accordance with Paragraph 4 above, and
CityTwist shall have the right to list Customer in the CityTwist customer list.
7. Cancellation Policy. Upon receipt of a signed
Insertion Order work begins, and expenses are incurred. Therefore, Insertion Orders cannot
be cancelled once submitted with signature.
||CityTwist will not be liable to Partner for any delay or
failure in its performance of any of the acts required by this Agreement if and to the
extent that such delay or failure arises beyond the reasonable control of CityTwist,
including, without limitation, acts of God or public enemies, labor disputes, equipment
malfunctions, internet downtime, material or component shortages, supplier failures,
embargoes, earthquakes, rationing, acts of local, state or national governments or public
agencies, utility or communication failures or delays, fire, flood, epidemics, riots and
||This Agreement will be governed by and construed in
accordance with the laws of the State of Florida, which are intended to supersede any
choice of laws rules which might require the application of the laws of another
jurisdiction. Both parties hereby consent to the jurisdiction of the state courts of
Florida with respect to actions brought to enforce or interpret this Agreement and all
other disputes between the Parties. Venue for all lawsuits shall be in Palm Beach County,
Florida. The prevailing Party in any lawsuits, including appeals, shall be entitled to an
award of its reasonable attorney's fees and costs. All Parties expressly waive trial by
jury and agree any dispute shall be decided by a judge.
||This Agreement will be binding upon and inure to the
benefit of the Parties hereto and to their respective heirs, representatives, successors,
and permitted assignees. This Agreement may not be assigned, transferred, shared or
divided in whole, or in part, without the other Party's prior written consent.
||No waiver of any provision of this Agreement shall be
deemed to be, or shall constitute, a waiver of any other provision hereof, nor shall such
waiver constitute a continuing waiver in any other instance.
||This Agreement (including the exhibits, amendments and
addenda hereto which are incorporated herein by this reference) sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof and
supersedes all prior and contemporaneous letters of intent, agreements, covenants,
negotiations, arrangements, communications, representations, understandings or warranties,
whether oral or written.
||eStamps are valid for 364 days from the date of purchase,
and thereafter eStamps shall expire and be no longer valid.
||The terms and conditions herein may be amended in the sole
discretion of CityTwist, and such amendments will be controlling on Insertion Orders or
orders submitted for email services from the date posted forward until future amendment,