explore404.com's Terms of Use

These Standard Terms and Conditions (this "Agreement") govern your relationship with UnitOne, LLC, a Georgia limited liability company d/b/a explore404.com ("explore404"). By advertising with explore404, the Advertiser (sometimes referred to herein as "you" or "your") hereby agrees to be bound by the terms and conditions of the Agreement set forth below.

1. Service.

1.1 explore404 shall display Advertiser's advertising materials, which may include text, rich media, video and/or graphic files ("Advertisements") on the explore404 website located at www.explore404.com (the "Service").

2. Advertisements.

2.1 Advertisements delivered to explore404 shall conform to any restrictions and guidelines communicated by explore404 or posted on the explore404 website. explore404 shall have the right to refuse to include in the Service any Advertisement that does not conform to the content restrictions and technical specifications, or that is otherwise inappropriate in explore404's reasonable discretion. For example, but not by way of limitation, explore404 shall have the right to reject any Advertisement that contains profanity or obscene comments. explore404 shall also be permitted to use the explore404 font to represent the name of Advertiser.

2.2 Advertiser hereby grants explore404 a limited non-exclusive, worldwide license to use, reproduce, display, publish, distribute and transmit the Advertisements, including any content, trademarks, service marks or logos contained therein, in accordance with the terms of this Agreement. Such license shall terminate with the termination of this Agreement.

2.3 explore404 may, upon prior notice to Advertiser, modify or change an Advertisement, including making appropriate adjustments to the placement, size, or rotation of Advertisements to optimize the efficiency or results of an Advertisement.

2.4 explore404 may suspend or cancel the display of any Advertisement or this Agreement in the event that explore404 considers, in its reasonable discretion, that the display of such Advertisement or the performance of this Agreement may give rise to explore404's criminal or civil liability or damage to its goodwill or reputation.

2.5 Advertiser covenants and agrees that during and following the term of this Agreement, it shall release and hold harmless explore404 from any and all liability related to any negative, derogatory or libelous review concerning Advertiser's business that is posted on the explore404 website. Advertiser further covenants and agrees that it shall refrain from posting any review concerning its own business on the explore404 website.

2.6 If any Advertisement created by explore404 for the Advertiser is used by the Advertiser in any location except for the explore404 website, such Advertisement must be branded with the explore404 name and logo to den

1. Service.

2. Advertisements.

2.7 When the Advertisement created by explore404 is ready for review by the Advertiser, an e-mail with a URL will be sent to the Advertiser with an individual username and password. If the Advertiser does not have access to e-mail, then a sales executive or producer will provide a copy for the Advertiser to watch. Once the Advertiser has received the Advertisement, it will have five (5) business days to approve or comment on the Advertisement. If explore404 receives comments on the Advertisement within such five-day period, explore404 will make any necessary changes without additional charge to the Advertiser and any changes will be made using existing footage and graphics. If explore404 fails to receive comments on the Advertisement within such five-day period, the Advertisement, will go live after five (5) business days. Changes to the Advertisement requested by the Advertiser following the initial five-day comment period will incur additional charges.

3. Term and Termination.

3.1 This Agreement shall begin on the date the Advertisement is displayed on explore404's website and shall continue for a period of one (1) year (the "Term"). Thereafter the Term shall renew for successive one (1) year periods (each a "Renewal Term"). In the event you terminate this Agreement prior to the expiration of the Term, or explore404 terminates this Agreement due to your breach of this Agreement, any payments previously made by you to explore404 shall not be refunded. Notice of Advertiser's termination of this Agreement will not be effective unless delivered in writing via email to info@explore404.com or via fax to (866) 772-0608, and in either case, you must identify your business name and contact phone number. Any such termination will require a minimum of five (5) business days for processing during which time the Advertising may remain on the explore404 website. explore404 may terminate this Agreement at any time for any or no reason by providing Business written notice of such termination in accordance with the terms of this Agreement.

4. Payment and Billing.

4.1 Advertising rates shall be set forth on the explore404 Sales Contract, which is incorporated by reference herein.

4.2 Charges to your account will occur on an annual basis, and you agree that payment will be made by explore404 initiating an ACH transfer or processing your credit card. The above fees shall continue to accrue during the Term of the Agreement. Accounts more than thirty (30) days past due may, at explore404's discretion, incur a $25.00 late fee and Business shall be liable for its entire outstanding balance and shall reimburse explore404 for all costs incurred related to any attempted recovery thereof, including but not limited to reasonable attorneys fees, and any costs of collection agencies. In addition, explore404 may charge Advertiser interest on a monthly basis equal to eighteen percent (18%) per annum for invoices not paid within sixty (60) days from the date thereof. Non-payment of invoices by Advertiser will be deemed to be a breach of this Agreement which shall permit explore404 to cancel Advertiser' account at its sole discretion and Advertiser shall be required to pay the amounts that would have been due for the remainder of the Term as further described above.

4.3 Advertiser shall pay explore404 within thirty (30) days of receipt of explore404's invoice. If Advertiser does not contest or dispute invoices within thirty (30) days after the date of such invoice, such invoice shall be deemed final and binding. If Advertiser fails to make payment within sixty (60) days of its receipt of any explore404 invoice, explore404 may immediately remove Advertisements from the Service and terminate this Agreement.

4.4 Advertiser shall be responsible for all costs it incurs in connection with this Agreement, including, without limitation, expenses associated with creating, updating and otherwise managing Advertisements, delivering Advertisements to explore404 and establishing and maintaining links between Advertisements and web sites outside the Service. Without limiting the foregoing, explore404 shall not be responsible for any of Advertiser's third party ad serving fees.

5. Privacy, Use of Data.

5.1 Advertiser shall comply with all applicable privacy laws and regulations. In particular, Advertiser shall (a) post conspicuously on its web sites, a privacy policy that at a minimum (i) describes how Advertiser collects, uses, stores and discloses information obtained from visitors to its web sites, and (ii) instructs visitors how to opt-in for the collection of such information; and (b) comply at all times with the privacy policies posted on its web sites. explore404 reserves the right to terminate this Agreement immediately if Advertiser violates this Section 5.1 or, if in explore404's reasonable determination, the privacy policy of Advertiser does not adequately disclose the information collection practices of Advertiser.

5.2 explore404 shall own all data obtained as a result of the performance of the Service, including click through rates, conversion rates and any user data collected by Advertiser ("Data"). Advertiser may use Data for any lawful purpose, provided Data is aggregated such that no specific Confidential Information (as defined in Section 7.1 below) or user personal data is disclosed to third parties. Such lawful purposes may include general reporting, compilation of statistics that may be provided to existing and potential customers for analytical and marketing purposes and scheduling and optimization of delivery of Advertisements across all campaigns and the Service.

6. Advertiser's Representations and Warranties.

6.1 Advertiser represents and warrants to explore404 that (i) Advertiser owns all artwork, text, trademarks, business names and/or other materials that it provides to explore404 (the "Business Content"), and none of Advertiser' Content shall infringe upon the intellectual property rights of any third party; (ii) Advertiser' performance hereunder will not cause a material breach of any agreement to which it is a party; (iii) Advertiser has the right and authority to enter into this Agreement and perform the obligations herein; (iv) Advertiser will at all times comply with all applicable laws and regulations; and (v) Advertiser will not provide to explore404, and Advertiser' website does not contain, any content that is obscene, pornographic or otherwise offensive in nature. If Advertiser is not enrolled in a search engine marketing campaign with a third party, Advertiser agrees that it will not enroll with a third party's search engine marketing program during the Term of this Agreement.

6.2 Advertiser represents and warrants that all Advertisements delivered to explore404 for display on the Service will be free of Spyware, Adware or Drive-by Downloads applications. As used in this Section, (a) "Spyware" means any application that covertly gathers user data and transmits it through the user's Internet connection other than information (i) reasonably gathered in connection with services or information overtly provided by the application provider to such users, or (ii) that is not associated with personally identifiable information; (b) "Adware" means any application that (i) causes advertising to pop-up as a new window (over or under the active window) on the user's computer either randomly or based on the user's online activity (other than advertisements a web site serves to users to such site's own domain while those users are visiting or exiting such domain) or (ii) is used to distribute Spyware, in each case regardless of whether the end user consented to install such application; and (c) "Drive-by Download" means any software installation process or procedure initiated as the direct or indirect result of a page or Advertisement view unless the user receiving the download requested it by voluntarily clicking on a button containing words such as "download now" (or words of similar meaning) immediately prior to the initiation of such process or procedure (the user's consent must be given in response to a clear download offer; agreement by the user to proceed past a security warning, alone, is not sufficient).

6.3 Advertiser warrants and represents to explore404 that (a) the marketing and sale of the products and services promoted in the Advertisements is lawful, (b) the products and services promoted in the Advertisements do not infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party, (c) in the case of promotion of age restricted products such as tobacco or alcohol, no such product will be sold to a consumer who does not have the required age, and (d) the Advertisements, the use and display thereof, and the content linked to from such Advertisements will not (i) infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party, (ii) be misrepresentative, libelous, defamatory, obscene, pornographic, or otherwise inappropriate, or (iii) violate any applicable law or regulation.

7. Confidentiality.

7.1 "Confidential Information" means any and all information disclosed by one party to the other party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, customer lists, business plans, technical data, product ideas, personnel, contract and financial information, and the terms of this Agreement. This Agreement is deemed to be Confidential Information of both parties. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of the receiving party; (b) was in the receiving party's lawful possession prior to the disclosure and had not been subject to limitations on disclosure or use; (c) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (d) is lawfully disclosed hereafter to the receiving party, without restriction, by a third party who did not acquire the information directly or indirectly from the disclosing party. Each party agrees that, except in connection with the performance of its obligations under this Agreement, it will not otherwise use in any way for its own account or the account of any third party, nor disclose to any third party, any Confidential Information revealed to it by the other party. Notwithstanding the foregoing, Confidential Information may be disclosed pursuant to a regulation, law, court order or rule of any applicable securities exchange (but only to the minimum extent required to comply with such regulation, order, or rule and with advance notice to the disclosing party). Each party shall take commercially reasonable efforts to protect the confidentiality of the other party's Confidential Information, such precaution not to be less than the precautions each party takes to protect the confidentiality of its own Confidential Information. The terms of this Agreement are deemed Confidential Information and may not be disclosed without the other party's prior written approval. Furthermore, Advertiser understands and agrees that explore404's list of advertisers, whether derived directly from explore404 or otherwise is explore404's Confidential Information. Notwithstanding the foregoing, either party may disclose the Confidential Information of the other party to the extent such party is legally compelled to do so, provided that the party required to make such disclosure will (y) provide the other party with prompt written notice of such disclosure so that the party whose Confidential Information may be disclosed has the opportunity if it so desires to seek a protective order or other appropriate remedy; and (z) disclose only such information as is legally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.

8. Indemnification.

8.1 Advertiser shall fully protect, indemnify and defend explore404 and all of its agents, officers, directors, shareholders, suppliers, partners, employees and each of their successors and assigns ("Indemnified Parties") and hold each of them harmless from and against any and all claims, demands, liens, damages, causes of action, liabilities of any and every nature whatsoever, including but not limited to personal injury, intellectual property infringement, fraud, deceptive advertising, violation of any state or federal laws or regulations, property damage, attorneys' fees and court costs, based upon or arising in any manner, directly or indirectly, out of or in connection with or in the course of or incidental to (i) any breach of Advertiser' representations, warranties, or obligations as provided in this Agreement, and (ii) Advertiser' advertising, products or services, or the provision thereof to consumers, Advertiser' website, and any Business Content and any video or audio content submitted to explore404 by Advertiser, REGARDLESS OF CAUSE OR OF ANY FAULT OR NEGLIGENCE OF EXPLORE404 OR THE INDEMNIFIED PARTIES AND WITHOUT REGARD TO CAUSE OR TO ANY CONCURRENT OR CONTRIBUTING FAULT, STRICT LIABILITY OR NEGLIGENCE, WHETHER SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE BY EXPLORE404 OR THE INDEMNIFIED PARTIES.

9. Agencies.

9.1 If Advertiser executes an Enrollment Form on behalf of a third party advertiser as an agency, Advertiser hereby represents and warrants to explore404 that such third party advertiser ("Third Party Advertiser") is contractually bound by the terms of this Agreement and as such is subject to all obligations and restrictions applicable to Advertiser hereunder and all representations and warranties made by Advertiser hereunder. In furtherance of the foregoing, Advertiser agrees to indemnify, defend and hold harmless explore404, its subsidiaries, affiliates, agents, partners, officers, directors, employees, and vendors and suppliers from and against any loss, cost, claim, injury or damage (including reasonable attorneys' fees) resulting from claims or actions arising out of or in connection with a breach of this Agreement by any Third Party Advertiser.

10. Limitation of Liability.

10.1 IN NO EVENT WILL EXPLORE404 BE LIABLE TO ADVERTISER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, LOST REVENUE, LOST PROFITS OR LOSS OF GOODWILL. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EXPLORE404 TO ADVERTISER EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY ADVERTISER TO EXPLORE404 DURING THE PRECEEDING THREE (3) MONTHS, REGARDLESS OF THE BASIS OR FORM OF CLAIM.

10.2 ADVERTISER ACKNOWLEDGES AND AGREES THAT EXPLORE404'S SERVICE IS PROVIDED TO ADVERTISER ON AN "AS IS" BASIS, AND EXPLORE404 DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW. FURTHERMORE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPLORE404 DISCLAIMS ALL WARRANTIES AND GUARANTEES REGARDING AN ADVERTISEMENT'S POSITIONING OR THE NUMBER OF IMPRESSIONS ON THE EXPLORE404 WEBSITE OR AN EXPLORE404 PARTNER WEBSITE, THE QUALITY OR TIMING OF CLICK-THROUGHS, CLICK-THROUGH RATES, CONVERSIONS OR OTHER PERFORMANCE OR RESULTS FOR ANY ADVERTISING.

11. Miscellaneous.

11.1 Advertiser shall not sell, transfer or assign this Agreement, any portion thereof, or any impressions, clicks, inventory or other rights obtained under this Agreement without explore404's prior written consent. Any attempted sale, transfer or assignment of this Agreement by Advertiser shall be void and of no effect.

11.2 This Agreement is governed and interpreted in accordance with the laws of the State of Georgia without reference to its conflict of laws principles. Jurisdiction and venue for all disputes hereunder shall be in Fulton County, Georgia and the parties hereby expressly agree to such jurisdiction and venue.

11.3 All notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, express courier, or certified mail, return receipt requested, to the address of the receiving party or at such different address as may be designated by such party by written notice to the other party from time to time. Notice will be effective on receipt.

11.4 No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms.

11.5 Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement.

11.6 Neither party shall be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control.

11.7 Sections 2.5, 3.1, 4.4, 7.1, 8.1, 10.1, 10.2, and this Section 11, together with any outstanding payment obligation(s), shall survive the termination of this Agreement.

11.8 explore404 and Advertiser are each independent contractors. Nothing in this Agreement shall be deemed or create or construed as creating a joint venture or partnership between the parties.

11.9 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and may not be modified without the prior written consent of both parties.

11.10 The terms of this Agreement may be changed by explore404 from time to time, and any notices hereunder shall be made, by providing you with email or written notice, or by posting any such changes on the explore404 website, and you agree to be bound by any changes. In addition, Advertiser agrees that it is required to maintain a current and operational email address on file with explore404.

11.11 Advertiser will be liable for any attorneys' fees and costs if explore404 takes any legal action to enforce this Agreement.