OnMyWay Business Solutions Contract
Advertising And Social Impact Commitment
The OnMyWay Social Impact Platform
This Agreement (this “Agreement”) is a legal Agreement between you, as either an individual or entity (“OnMyWay Customer”) aka “OC”, and “The OnMyWay Business Foundation”, for the purchase by “OC” of certain advertising, marketing and social rewards as described in “OC” order (the “Order”) made via The OnMyWay Social Impact Ad Solutions websites, applications and/or other interactive properties (collectively, the “Properties”). “OC” accepts this Agreement and the relevant Order upon any clear indication of acceptance. This agreement includes any agency or buying service named in the Order, and all persons and entities included within proposal agree to the purchase of this advertising/marketing schedule and that they are jointly and severally liable for all obligations of “OC” under this contract regardless of who is billed. If an agency or buying service is included in “OC” agreement, it is understood that party is the agent of “OC” and not of The OnMyWay Business Foundation.
1. ORDER, FEES, AND PAYMENT.
1.1. Each Order shall specify the (i) names of the parties to this Agreement; (ii) the fees to be paid by “OC”; (iii) campaign start date(s) and end date(s); (iv) the entities that may make the Marketing/Advertising; and (v) any other information that the parties deem necessary for inclusion in the Order.
1.2. “OC” shall pay for all Marketing/Advertising made by The OnMyWay Social Impact Ad Solutions pursuant to the Order. If “OC” pays with a credit or other payment card, it will be required to provide The OnMyWay Social Impact Ad Solutions or its third-party payment processor with a valid payment card number and associated payment information that “OC” is authorized to use. By submitting that information to The OnMyWay Social Impact Ad Solutions or to its third-party payment processor, “OC” authorizes The OnMyWay Social Impact Ad Solutions or the payment processor (as applicable) to charge the card or other payment method for the charges at The OnMyWay Business Foundation’s convenience. The OnMyWay Social Impact Ad Solutions or its third-party payment processor may run one or more payment card authorization checks on “OC”’s card before it is charged. “OC” authorizes The OnMyWay Social Impact Ad Solutions or its third-party payment processor to store “OC”’s payment card information and, if needed, to continue billing the card until the Order has been fulfilled. If The OnMyWay Social Impact Ad Solutions does not receive payment from “OC’s” payment card or other payment method issuer or their agents, “OC” remains obligated and agrees to pay all amounts due upon request from The OnMyWay Social Impact Ad Solutions or its agents. The OnMyWay Social Impact Ad Solutions may charge “OC’s” credit card on a Monthly basis, Annual or Upfront One Pay for all charges outlined and schedule in proposal. If The OnMyWay Social Impact Ad Solutions refers this Agreement for collection, “OC” shall pay reasonable attorney’s or collector’s fees and any court costs incurred by The OnMyWay Business Foundation.
1.3. Before and/or throughout “OC” ’s campaign, “OC” will be charged by The OnMyWay Social Impact Ad Solutions for the services delivered. “OC” will pay The OnMyWay Social Impact Ad Solutions for all charges it incurs in connection with the use of the Properties. “OC” agrees that any funds that have been paid by “OC” with respect to the Properties are non-refundable and belong to The OnMyWay Business Foundation.
2.1. The “OC” agrees to pay for the full amount outlined in the proposal and agreement. The OnMyWay Social Impact Ad Solutions requires 29 days’ notice in writing at the end of the non-refundable current term to avoid auto-renewal. No exceptions can be made, and the OC is responsible for the full term and cost associated with this agreement.
3. REPRESENTATIONS & WARRANTIES / INDEMNIFICATION
3.1. “OC” represents, warrants and agrees that: (i) The OnMyWay Social Impact Ad Solutions use of any material furnished by “OC” pursuant to this Agreement or created by The OnMyWay Social Impact Ad Solutions pursuant to “OC” ’s instructions (““OC” Material”), in each case as authorized by “OC” , including, but not limited to the Marketing/Advertising of the “OC” Materials over the facilities of The OnMyWay Social Impact Ad Solutions shall not violate or infringe upon the rights of others; provided, however, that the foregoing representations and warranties shall not apply to any material furnished or added to the “OC” Materials after delivery to The OnMyWay Social Impact Ad Solutions by any party other than “OC” , and (ii) “OC” (and the “OC” Materials) shall comply with all applicable federal, state and local laws and regulations. Customer acknowledges and agrees that, upon Customer’s request, The OnMyWay Social Impact Ad Solutions may create an advertisement pursuant to Customer’s instructions and that Customer is solely responsible for the contents of the Advertisement and its compliance with applicable laws and regulations.
3.2. “OC” shall defend, hold harmless and indemnify The OnMyWay Social Impact Ad Solutions its parents and affiliates, and their respective officers, directors, employees and agents from all claims, actions, causes of action, liabilities, demands, damages or costs (including reasonable attorney fees) of whatsoever name or nature, including but not limited to (i) defamation, unlawful competition or trade practice, infringement of intellectual property or other property or personal rights. (ii) any breach or violation of any sort of the representations and warranties described in Section 3.1; or (iii) claims arising from the products, services, operations, data, representations or warranties relating to, directly or indirectly, any “OC” Material or to “OC” ’s business, services, operations or prizes (if any).
3.3. The OnMyWay Social Impact Ad Solutions does not guarantee the performance of advertisements or the Properties, or that advertisements will fully reach the consumers “OC” desires to reach.
4. INABILITY TO TRANSMIT
4.1. If, due to public emergency or necessity, force majeure, restrictions imposed by law, acts of God; labor disputes, or for other cause, including mechanical breakdown beyond The OnMyWay Social Impact Ad Solutions control, The OnMyWay Social Impact Ad Solutions shall be unable to distribute any program or announcement to be transmitted under this Agreement, that transmission shall be canceled, and The OnMyWay Social Impact Ad Solutions shall not be liable to “OC” .
4.2. The OnMyWay Social Impact Ad Solutions shall have the right to cancel any Marketing/Advertising or portion thereof to be made under this Agreement in order to distribute any program which it deems to be of public significance.
5. PROGRAM PRODUCTION
5.1. The OnMyWay Social Impact Ad Solutions shall use “OC” Material to create advertisements over its and other’s facilities (the “Advertisements”). All “OC” Material is subject to The OnMyWay Social Impact Ad Solutions approval and The OnMyWay Social Impact Ad Solutions may exercise a continuing right to reject such material for any reason. All “OC” Material must conform to the program and operating policies of The OnMyWay Social Impact Ad Solutions and The OnMyWay Social Impact Ad Solutions shall have the continuing right to edit in the public interest provided, however, that The OnMyWay Social Impact Ad Solutions approval of such “OC” Material shall not affect “OC’s” indemnity obligation under this Agreement.
5.2. The OnMyWay Social Impact Ad Solutions will retain all property rights in the Advertisements. “OC” may not use the Advertisements for any purpose other than Marketing/Advertising by The OnMyWay Social Impact Ad Solutions pursuant to an Order.
6.1. The OnMyWay Social Impact Ad Solutions will not discriminate in any Agreement for advertising based on race or ethnicity, and all such agreements will be evaluated, negotiated and completed without regard to race or ethnicity.
7.1. This Agreement is for the advertising/marketing the named products or services and is subject to all applicable federal, state and municipal regulations. The OnMyWay Social Impact Ad Solutions will market/advertise the Advertisements and on days, times and stations as determined solely by The OnMyWay Business Foundation. The OnMyWay Social Impact Ad Solutions may make reproductions of “OC” Materials to affect the Marketing/Advertising.
7.2. The OnMyWay Social Impact Ad Solutions shall assume no liability for loss or damages to “OC” Material and other property furnished by “OC” in connection and under this Agreement.
7.3. “OC” may not assign or transfer this Agreement without first obtaining the written consent of The OnMyWay Business Foundation; nor is The OnMyWay Social Impact Ad Solutions required to market any material under this Agreement for the benefit of any person or entity other than “OC” .
7.4. The failure of The OnMyWay Social Impact Ad Solutions or “OC” to enforce any of the provisions of this Agreement shall not be construed as a waiver of that or any other provision.
7.5. This Agreement contains the entire agreement between the parties relating to the subject matter in it, and no modification of its terms shall be effective unless in writing signed by both parties.
7.6. Any dispute or claim in connection with or relating in any way to this Agreement will be determined by mandatory binding individual (not class) arbitration. Both parties agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of this arbitration provision or to the arbitrability of any claim or counterclaim. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief benefiting anyone but the parties to this Agreement. This arbitration provision will survive termination of the Agreement. Nothing in this arbitration provision will be deemed to waive, preclude, or otherwise limit either parties’ rights to (1) bring an individual action in a U.S. small claims court or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. BOTH PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both parties agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration. Any arbitration will take place under the Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”) and that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision. The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. The arbitration will be conducted (1) solely based on documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or if we do not have a physical address on file for you, by electronic mail ("Notice"). The OnMyWay Social Impact Ad Solutions address for Notice is: The OnMyWay Social Impact Ad Solutions., we.are@OnMyWay.com. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, either party may commence an arbitration proceeding.
7.7. TO THE EXTENT PERMITTED BY LAW, THE ONMYWAY SOCIAL IMPACT AD SOLUTIONS MAKES NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, ABOUT THE SERVICES DESCRIBED IN THIS AGREEMENT AND DISCLAIMS ALL WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR USE. TO THE EXTENT PROVIDED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY (INCLUDING LIABILITY FOR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND PUNITIVE DAMAGES) OTHER THAN AS SPECIFIED IN THIS AGREEMENT. THE ONMYWAY SOCIAL IMPACT AD SOLUTIONS MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), WILL IN NO CIRCUMSTANCES EXCEED THE AMOUNT PAID BY “OC” PURSUANT TO THIS ORDER IN THE THREE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THIS SECTION OR THIS AGREEMENT SHALL BE CONSTRUED TO EXCLUDE OR LIMIT ANY LIABILITY OF EITHER PARTY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW (SUCH AS FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION).