National Capital Chapter of ASHRAE
Online Directory Advertising Agreement and Terms and Conditions
- Scope/Parties/Basic Agreement Terms. These terms and conditions ("Terms and Conditions") are incorporated with and include those terms contained in the Chapter’s Advertisement Listing Order ("Order"), whether printed or electronic, submitted by the party identified as "Advertiser" on the Order and in the event that it is accepted by the National Capital Chapter of ASHRAE ("NCC” or “Chapter”) for inclusion on the digital directory. Taken together, the Order and these Terms and Conditions constitute a request for the National Capital Chapter to provide a listing of the Advertiser as described in the Order which, upon acceptance by the Chapter, will become a contract for delivery of advertising services (the "Agreement"). The Chapter shall not be deemed to have accepted the Order establishing a contract until the Order has been signed by an authorized Chapter officer or executive or such other duly authorized representative of the Chapter.
For purposes of the Agreement, the "Listing Fee" is the total advertising fee set forth on the Order and the "Listing Period" will commence July 1 and end on June 30 of each year. If an Order is placed by an Advertiser at any time during the Listing Period, the Listing Fee shall remain at the same rate as if placed July 1 through June 30. There will be no prorated adjustment of the Listing Fee.
- Changes to Terms and Conditions. NCC may periodically modify and supplement these Terms and Conditions and the notice provided to Advertiser of any such revisions will be the updating of these Terms and Conditions. Advertiser is responsible for regularly checking these Terms and Conditions for revisions. All amended Terms and Conditions become effective immediately upon posting to the Website by the Chapter, and any use of the Website or directory services after such revisions have been posted signifies Advertiser's consent and agreement to the modified Terms and Conditions.
- Advertising Services and Uses. Subject to the Terms and Conditions of the Agreement, the Chapter agrees to place the Listing, as more fully described in the Order, on the website operated by the Chapter ("Website"). Advertiser authorizes the Chapter to place its Listing on the Website and link to Advertiser's website. Advertiser will be responsible for content and the inclusion of desired hyperlinks. Unless otherwise agreed by the Chapter, the Listing may be modified by the Chapter without Advertiser's consent to comply with any policy or other requirement of the Chapter. The Chapter agrees to notify the Advertiser of any such change in advance. The Chapter shall have no liability as a result of any such decision. The Chapter also reserves the right, at its sole and absolute discretion, to reject, omit or terminate for any reason at any time with or without notice, any links, that may or may not have been previously accepted, acknowledged, posted or published that are deemed by the Chapter, in its sole discretion, inappropriate or unacceptable.
- Parties' Responsibilities. Advertiser agrees to submit the completed Listing and accompanying contacts and images at the time of execution of the Agreement. Advertiser is solely responsible for the content of the Listing, including URL links. The Chapter is not responsible for anything related to or regarding the Listing or the Advertiser's website(s) that may be referenced or linked in the Listing, including, but not limited to, maintenance of Advertiser's website, order entry, customer service, payment processing, shipping, cancellations or returns. The Chapter will have no obligation to place the Listing on the Website until payment of the Listing Fee and any other payment provided for herein is received as set forth herein and the Chapter has received the Listing proof approved in writing by Advertiser.
- Payments. In consideration for the placement of the Listing on the Website by the Chapter as set forth herein, Advertiser shall pay to NCC at the time of execution of the Agreement, the Listing Fee set forth in the Order. All payment amounts in the Agreement shall be in U.S. dollars, are exclusive of any applicable taxes and shall be made free and clear of and without reduction for, any applicable federal, state, and local taxes, value-added or sales taxes, withholding taxes, duties, levies and assessments, howsoever designated or computed, pertaining to payments under the Agreement. Advertiser shall be solely responsible for and shall pay directly to the appropriate taxing authority any applicable taxes and shall indemnify the Chapter against liability for any such applicable taxes.
- Positioning of Ad; No Exclusivity. Except as otherwise expressly set forth in the Agreement, positioning of the Listing within the Website or on any web page is at the sole discretion of the Chapter. Chapter may carry any advertising or listing on the Website that it so chooses including advertising by or listing of competitors of the Advertiser.
- Modifications and Cancellations. NCC reserves the right to modify any of its menus, page structures, buttons, logos or text specifications of the Website as it deems necessary for any reason. Any modifications to the Listing requested by the Advertiser may incur charges as determined by the Chapter in its sole discretion, unless such modifications are included, in writing, in the Agreement. If Advertiser elects to cancel the Listing after the Agreement is executed, Chapter shall remove the Listing from the Website as soon as reasonably practicable but shall have no obligation to refund any portion of the Listing Fee.
- Confidentiality. Each party hereto agrees not to disclose Confidential Information of the other party without prior written consent except as provided herein. "Confidential Information" includes (i) ads or listings prior to publication, (ii) submissions or modifications relating to any advertising campaign, and (iii) any other information designated in writing as "Confidential", except for disclosure to any Chapter representative as part of the Chapter providing the Services to Advertiser. It does not include information that has become publicly known through no breach by a party, or has been (a) independently developed without access to the other party's Confidential Information; (b) rightfully received from a third party; or (c) required to be disclosed by law or by a governmental authority.
- No Guarantee. The Chapter does not guarantee any amount of impressions, clicks, or any other form of measurable response, including but not limited to any generation of revenue, for the Listing on the Website.
- No Warranty. NCC MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. AS A CONDITION OF THE CHAPTER'S WILLINGNESS TO ENTER INTO THE AGREEMENT, ADVERTISER AGREES THAT IT HAS NOT RELIED UPON ANY SUCH WARRANTY AND ASSUMES ALL RISKS CONCERNING THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF THE ADVERTISING.
- Limitations of Liability; Force Majeure. In the event that the Chapter fails to publish the Listing in accordance with the terms of the Agreement, or in the event that the Chapter fails to deliver the full time period of the Listing as set forth herein, or in the event of any other failure, technical or otherwise of such Listing to appear as provided in the Agreement, the sole liability of the Chapter and exclusive remedy of Advertiser shall be limited to placement of the Listing at a later time in a comparable position until the total Listing Period is delivered, or refund of prorated Listing Fee, at the Chapter's sole election and discretion. In no event shall the Chapter be liable for any act or omission, or any event directly or indirectly resulting from any act or omission, of third parties (if any). IN NO EVENT SHALL THE CHAPTER BE LIABLE UNDER THE AGREEMENT FOR ANY LOST PROFITS, CONSEQUENTIAL, SPECIAL, DIRECT, INDIRECT, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, WHETHER BASED IN CONTRACT, INTELLECTUAL PROPERTY INFRINGEMENT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF THE CHAPTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE CHAPTER'S AGGREGATE LIABILITY UNDER THE AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY THE CHAPTER FROM ADVERTISER FOR THE LISTING GIVING RISE TO THE CLAIM. Each party acknowledges that the other party has entered into the Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental actions or acts of terrorism, pandemic, earthquake or other acts of God, labor conditions, power failures and periodic interruptions of internet service and system transmission.
- Representations and Warranties; Indemnification. Advertiser represents and warrants that Advertiser holds all necessary rights, including but not limited to rights to all trademarks, logos, trade names, copyrights, pictures, graphics, or other intellectual property submitted for use in connection with the Listing, or has express permission to use such items and to permit the use of the Listing by the Chapter for the purpose of the Agreement; and that the use, reproduction, distribution, transmission or display of the Listing, any data regarding users, and any material to which users can link, or any products or services available to users, through the Listing will not (a) violate the intellectual property rights of any third party, (b) violate any criminal laws or any rights of any third parties, or (c) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law. Advertiser further represents and warrants that the Listing and any website linked to the Listing (i) comply with all laws and regulations in any state or country where the Listing is displayed; (ii) do not breach and have not breached any duty toward or rights of any person or entity, including, without limitation, rights of publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; (iii) are not false, misleading, defamatory, libelous, slanderous or threatening; (iv) are free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information; and (v) will not contain any content of an adult, inflammatory or obscene nature. Advertiser further represents and warrants that it will not, nor will it allow anyone working for it to: (A) engage or cause others to engage in any form of spamming or improper or malicious, as determined by the Chapter, clicking, impression or marketing activities; (B) access the Website or the Chapter’s networks or systems for any purpose other than to view the Listing or conduct valid business with the Chapter; (C) interfere or attempt to interfere with the proper working of the Website or other Chapter networks or systems; (D) use any data from the Website or other Chapter networks or systems for external commercial purposes; or (E) represent that the Chapter endorses or promotes the Advertiser or its services or products without the Chapter's prior written permission. Advertiser agrees to indemnify, defend and hold the Chapter, its officers, directors, employees, volunteers and agents harmless from and against any and all liability, loss, damages, claims, or causes of action, including reasonable attorneys’ fees and expenses, arising out of or related to (I) breach of any of the foregoing representations and warranties or other provisions of the Agreement, or (II) any third party claim arising from the use of or access to the Listing under the Agreement or any material to which users can link, or any products or services made available to users, through the Listing under the Agreement.
- Termination. The Agreement shall terminate at the end of the Listing Period unless otherwise extended in writing by the mutual agreement of the parties hereto. The Chapter shall have no obligation in any event to renew the listing.
(a) Termination by Advertiser. Advertiser may terminate the Agreement, with or without cause, by giving 30 days advance written notice of its intent to terminate. If Advertiser so elects to terminate the Agreement, the Chapter shall remove the Listing from the Website as soon as reasonably practicable but shall have no obligation to refund any portion of the Listing Fee. The Chapter reserves the right to, and at its sole and absolute discretion may, at any time reject, modify, or remove the Listing for any reason.
(b) Termination by Chapter. The Chapter may terminate the Agreement (i) at any time in the event of a material breach by the Advertiser which remains uncured after ten (10) days' written notice thereof, (ii) immediately if the Chapter believes that the Listing or its content is obscene, inappropriate, disparaging or defamatory, (iii) immediately if the Chapter receives notification that the listing is claimed to infringe on the rights of a third party or is illegal, or (iv) immediately in the event the Chapter fails to approve the Listing. In any such event the Chapter may remove the Listing from the Website and shall have no obligation to refund any portion of the Listing Fee. In addition, the Chapter may terminate the Agreement without cause upon thirty (30) days written notice to the Advertiser. In the event that the Chapter terminates the Agreement without cause, it shall refund the Listing Fee on a prorated basis.
(c) Survival. In the event of termination by either party or expiration of the Agreement, Paragraphs 4, 5, 8, 9, 10, 11, 12, 13, 14 and 15 of these Terms and Conditions shall survive such termination or expiration of the Agreement.
- Proprietary Rights. Each party hereto shall retain all proprietary rights in and to their respective websites and other proprietary materials such as copyrights, trademarks, trade secrets and confidential information. Neither party grants the other any rights in and to such proprietary material except as specifically provided in the Agreement.
- General Provisions.
(a) Notices. All notices required or permitted by the Agreement shall be in writing and shall be given by personal delivery or sent to the address of the party set forth below by certified mail, postage prepaid, return receipt requested, or by reputable overnight courier for next business day delivery, prepaid, receipt acknowledged. Notices shall be deemed received on the earlier of the date of actual receipt or, in the case of notice by mail or overnight courier, the date of receipt marked on the acknowledgment of receipt. Rejection or refusal to accept or the inability to deliver because of change of address of which no notice was given shall be deemed to be received as of the date such notice was deposited in the mail or delivered to the courier.
If to the National Capital Chapter of ASHRAE:
2311 Wilson Blvd, Suite 400
Arlington, VA 22201
If to Advertiser:
Name and Address of Advertiser set forth on the Order
Any party may change its address to which notices should be sent to it by giving the other party at least 10 days prior written notice of the new address in the manner set forth in this paragraph.
(b) Entire Agreement. The Agreement and attachments hereto, if any, shall constitute the entire understanding and agreement between the parties and no variance, modification, waiver or amendment thereof shall be valid and enforceable, except by agreement in writing, executed and approved in the same manner as the Agreement.
(c) Assignments. The Agreement is personal to Advertiser. Advertiser agrees that it shall not assign or transfer its interest in the Agreement without the prior written consent of the Chapter and further agrees that the Agreement binds the Advertiser, its successors, trustees, legal representatives and assigns.
(d) No Rights or Remedies Conferred. The Agreement shall not confer any rights or remedies upon any person or entity other than the parties hereto and their respective permitted successors and assigns.
(e) No Partnership Intended; Independent Contractor. Advertiser is an independent contractor and is not an employee, servant, agent, partner or joint venturer of the Chapter. The Agreement shall not be deemed to be nor intended to give rise to a partnership or any form of joint venture between the Chapter and the Advertiser. Neither Party shall have the right to bind the other without such Party’s prior written consent.
(f) Consents and Approvals. Whenever the Chapter’s consent or approval is required under the Agreement, subject to any provision expressly to the contrary, the Chapter may grant or withhold such consent or approval or may grant such consent or approval on a conditional basis upon such terms and conditions as the Chapter may deem advisable, in the Chapter’s sole and absolute discretion. In order to be binding upon the Chapter, any such consent or approval must be in a written instrument signed by an authorized representative of the Chapter. Notwithstanding anything in the Agreement to the contrary, Advertiser shall have no claim and Advertiser hereby waives the right to any claim against the Chapter for money damages or other remedies not expressly provided by the Agreement by reason of any refusal, withholding or delaying by the Chapter of any consent or approval.
(g) Governing Law. The laws of the Commonwealth of Pennsylvania will govern the Agreement.
(h) Attorneys' Fees. In the event of any litigation or arbitration proceedings between the parties hereto concerning the subject matter of the Agreement, the prevailing party in such litigation or proceedings shall be awarded, in addition to the amount of any judgment or other award entered therein, the costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the litigation or proceedings.
(i) Jurisdiction and Venue. The sole and exclusive jurisdiction and venue for any litigation arising from or relating to the Agreement or the subject matter hereof shall be a court of competent jurisdiction in the Commonwealth of Pennsylvania and each party hereby waives any right it may have to transfer or change the venue of any litigation brought by one party against the other in accordance with this paragraph.
(j) Authority. Each of the parties hereto represents to the other that such party has full power and authority to execute, deliver and perform the Agreement, and that the individuals executing the Agreement on behalf of the party represent and warrant that are fully empowered and authorized to do so and to bind the party on whose behalf they are executing the Agreement.
(k) Construction. Throughout the Agreement, the singular shall include the plural and the plural shall include the singular, all genders shall be deemed to include other genders, wherever the context so requires, and the terms “including,” “include” or derivatives thereof, unless otherwise specified, shall be interpreted in as broad a sense as possible to mean “including, but not limited to,” or “including, by way of example and not limitation.”
(l) Waiver. The waiver of or failure to enforce any term or condition of the Agreement shall not be effective unless it is in writing and executed by the party sought to be charged with the waiver or failure and shall not be construed as a waiver of any other term or condition.
(m) Severability. If any provision of the Agreement proves to be illegal, invalid or unenforceable, the remainder of the Agreement will not be affected by such finding, and in lieu of each provision of the Agreement that is illegal, invalid or unenforceable, a provision will be added as a part of the Agreement as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
(n) Headings. Paragraph headings used in the Agreement are for convenience of reference only and will not affect the construction of any provision of the Agreement.