Advertiser Standard Terms and Conditions
(1) Binding Contract
Advertiser (“Advertiser”) acknowledges and agrees that the placement of advertising with Montauk Publishing, Inc., d/b/a On Montauk, constitutes acceptance of a binding agreement to abide by the terms and conditions set forth herein.
On Montauk shall provide a reference to the advertised entirety on the map in the publication free of charge. A 25% deposit is due at the time of purchase of the advertisement. On Montauk shall invoice Advertiser for the remainder which is due, which payment in full is due 30 from the invoice date. Late payments will bear finance charges at the rate of 1.5% per month, or, in the event such finance charge surpasses the maximum permitted by applicable law, then the maximum permitted by applicable law. Sales taxes, excise taxes and other similar statutory charges are not included in the quoted price and will be added by On Montauk to its invoice(s) to Advertiser. In the event Advertiser shall fail to pay monies owed hereunder, On Montauk may use an attorney, collection agency, or similar person, company or service for collection of outstanding monies owed. Advertiser shall be responsible for all costs of collection, including any attorneys’ fees.
(3) Approval; Delivery
All advertising submitted by Advertiser must be approved in advance of publication by On Montauk. On Montauk reserves the right to reject any advertising for any reason in its sole discretion. Advertiser must deliver its final advertising submission by the due date provided by On Montauk. If On Montauk is creating the advertising, then Advertiser must provide its approval of the advertising in writing by said due date. In the event Advertiser fails to deliver or provide its approval timely, On Montauk shall have the right to terminate this Contract immediately and Advertiser shall have no right to a refund.
Advertiser shall have the right to cancel an order, provided notice of such cancellation is delivered in writing. The deposit is non-refundable.
(5) Performance; Waiver
On Montauk shall make reasonable efforts to fulfill the order. Advertiser hereby waives any and all claims that it may have against On Montauk for damages due to On Montauk’s failure to fulfil the order, provided that Advertiser shall be entitled to a refund in the event the order is unfulfilled. Advertiser further hereby waives any and all claims that it may have against On Montauk for mistakes, misprints, typographical errors and/or similar issues, for which On Montauk shall not provide a refund or credit of any kind.
(6) Limitation of Liability
Under no circumstances shall On Montauk be liable for indirect, consequential damages of any nature, anticipated or lost profits, incidental damages, loss of time or other SIMILAR losses incurred by Advertiser or any third party in connection with the goods or services sold by on Montauk.
On Montauk shall be the sole owner of all work product, including, without limitation, advertising copy and designs, that is created by On Montauk. Advertiser has purchased the right of reproduction in the publication. Any use by Advertiser of said work product is prohibited. Advertiser may purchase or license the work product from On Montauk.
(8) Representations and Warranties
Advertiser represents and warrants to On Montauk that all information, materials, content and/or intellectual property furnished by Advertiser hereunder is the sole property of Advertiser, or is used within the terms of a license held by Advertiser for the use of such information, materials, content and/or intellectual property, and does not infringe the rights of any third party, including, without limitation, trademark, copyright, patent, trade secret, or other proprietary or personal rights.
Each party represents and warrants to the other that it has the power and authority to enter into this Contract and to perform its obligations hereunder.
On Montauk expressly disclaims all OTHER warranties, expressed or implied.
Advertiser hereby indemnifies and will defend and hold harmless On Montauk and its affiliates, and its and their respective shareholders, officers, directors, managers, members, employees, and agents from and against all liability, damages, loss, cost, or expense (including, without limitation, reasonable attorneys’ fees and expenses), arising out of or in connection with (i) Advertiser’s negligence, willful misconduct, or breach by Advertiser of its representations or warranties hereunder, and/or (ii) any claim, suit, action, or proceeding relating to (a) advertising which Advertiser approves and/or (b) the ownership, use or exploitation of information, materials, content or intellectual property provided by Advertiser hereunder, including, without limitation, any claim relating to the violation of any third party’s trademark, copyright, patent, trade secret, or other proprietary or personal rights.
On Montauk reserves the right to terminate any order (i) by giving written notice to Advertiser upon the occurrence of a commission by Advertiser of a breach of these terms and conditions, which breach is not cured within 7 days from the date of the notice and (ii) at any time solely for On Montauk’s convenience, provided that On Montauk notifies Advertiser of any such termination for convenience 15 days’ prior to termination. In the event of termination for (a) cause, Advertiser shall owe On Montauk all amounts owed pursuant to Section (1) and (b) convenience, On Montauk shall return all amounts paid by Advertiser pursuant to Section (1) and shall have no further liability to Advertiser.
(12) Governing Law; Jurisdiction; Attorneys’ Fees
This Contract, the rights of the parties hereunder and any dispute shall be governed by and interpreted in accordance with the internal laws of the State of New York, without regard to its conflict of laws rules or choice of law principles. Any controversy or claim arising out of or relating to this Contract, or breach thereof, shall be settled by binding arbitration. The arbitrator shall award to the Prevailing Party, if any, as determined by the arbitrator, all of its Costs and Fees. “Prevailing Party” means the party obtaining substantially the relief sought, whether by compromise, settlement or judgment. “Costs and Fees” means attorneys’ fees, costs and all reasonable expenses, including, without limitation, all reasonable pre-award expenses of the arbitration, including the arbitrator’s fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, and witness fees.
This Contract constitutes the entire agreement between On Montauk and Advertiser relating to the subject matter hereof and supersede any prior agreement or understandings between them. These terms and conditions are effective as of the date set forth above and may be amended by On Montauk in its sole discretion. The other terms of the Contract may not be modified or amended unless such modification or amendment is agreed to in writing by both On Montauk and Advertiser. The failure of either party to seek redress for violation of or to insist upon the strict performance of any agreement, covenant or condition of this Contract shall not constitute a waiver with respect thereto or with respect to any subsequent act. If any provision of these terms and conditions is determined to be illegal or unenforceable, that provision will be limited or stricken from this Contract so that this Contract will otherwise remain in full force and effect and be fully enforceable. Each party will not be liable to the other for any delay or failure to perform due to causes beyond its reasonable control, including, without limitation, acts of God, acts of governmental authority, strike, terrorism, war, or other disturbance.
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