Legal Discussion Pertaining To Advertising Insertion Order

Guarantee

Satisfaction Guaranteed Or You Pay Nothing!

LEGAL DISCUSSION

This discusses the legal considerations and guarantees we make to one another and leads to a form (similar to the on above) by which you can place an advertising insertion order and then provide payment.

I begin with my guarantee to you. 

Indemnification:

You agree to indemnify, defend and hold harmless us, our licensors, vendors, service providers, and each of our and their respective officers, directors, members, employees, independent and sub-contractors, agents, representatives, successors and assigns (collectively, “Indemnitees”) from and against any and all claims, disputes, demands, proceedings, cause of action, judgments, damages, liabilities, losses, costs or expense (including, but not limited to reasonable attorneys’ fees) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (collectively, “Claims”) which may arise out of or are in any way connected with your access, visitation and/or use of the Service, your Content, unauthorized use of Content obtained on or through the Service, breach or alleged breach of the Agreement, or from any of your acts or omissions in connection with the Service.

Disclaimer of Warranty and Limitation of Liability:

1. CERTAIN FEATURES, FUNCTIONALITY, AND/OR CONTENT OFFERED ON OR THROUGH THE SERVICE MAY BE HOSTED, ADMINISTERED, RUN OR OTHERWISE PARTICIPATED IN BY THIRD PARTIES, SUCH AS OUR SERVICE PROVIDERS THAT PROVIDE SOCIAL, COMMUNITY AND PUBLIC DISCUSSION AREAS, PHOTO AND VIDEO GALLERIES, BULLETIN BOARDS, FORUMS, CHATS, BLOGS, AUCTIONS, SHOPPING, AND PERSONAL/JOB SEARCH AND OTHER CLASSIFIED ADS. THESE SERVICE PROVIDERS MAY REQUIRE THAT YOU AGREE TO THEIR ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS AND/OR RULES. YOUR COMPLIANCE WITH ANY SUCH ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS AND/OR RULES IS SOLELY YOUR RESPONSIBILITY AND WILL HAVE NO EFFECT ON YOUR CONTINUING OBLIGATION TO COMPLY WITH THE AGREEMENT WHEN USING THE SERVICE. WE AND OUR INDEMNITEES SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE ACTS OR OMISSIONS OF SUCH THIRD PARTIES.
2. YOU ACKNOWLEDGE THAT YOU ARE USING THE SERVICE AT YOUR OWN RISK. THE SERVICE IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND ON AN “AS AVAILABLE” BASIS, AND WE AND OUR INDEMNITEES HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY CONTENT CONTAINED THEREIN OR PROVIDED BY US OR THE SERVICE. WE AND OUR INDEMNITEES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT ACCESS TO THE SERVICE AND/OR COMMUNICATIONS OR MESSAGING FROM OR TO US OR YOU WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE, OR THAT THERE WILL BE NO FAILURES, DELAYS, INACCURACIES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED CONTENT, OR THAT NO SOFTWARE DISABLING DEVICES, TIME BOMBS, VIRUSES, WORMS, BUGS, OR DEVICES OR DEFECTS OF SIMILAR NATURE WILL BE TRANSMITTED ON OR THROUGH THE SERVICE, AND WE AND OUR INDEMNITEES WILL NOT BE LIABLE IN THE EVENT OF ANY SUCH OCCURRENCE.
3. WE AND OUR INDEMNITEES ARE NOT RESPONSIBLE FOR INCOMPLETE, INCORRECT, LOST, DELAYED, LATE, MISDIRECTED, GARBLED, DAMAGED, ILLEGIBLE, UNDELIVERABLE, OR INCOMPLETELY RECEIVED COMMUNICATIONS OR MESSAGING FROM OR TO US OR YOU FOR ANY REASON, INCLUDING BY REASON OF HARDWARE, SOFTWARE, BROWSER, NETWORK, COMMUNICATIONS SYSTEM FAILURE, MALFUNCTION, DELAY, OR CONGESTION, OR ANY INCOMPATIBILITY AT OUR SERVERS OR ELSEWHERE, OR FOR ANY OTHER TECHNICAL PROBLEMS, ANY FORM OF ACTIVE OR PASSIVE FILTERING BY A USER’S COMPUTER, MOBILE OR OTHER DEVICE OR ACCESS PROVIDER, INSUFFICIENT SPACE ON USER’S COMPUTER, MOBILE OR OTHER DEVICE OR ACCOUNT/PROFILE, OR ANY OTHER CAUSE OR COMBINATION THEREOF.
4. WE AND OUR INDEMNITEES SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ALLEGEDLY SUSTAINED ARISING OUT OF THE AGREEMENT, THE SERVICE, THE SALE, PURCHASE, RECEIPT, USE OR MISUSE OF ANY MERCHANDISE, PRODUCTS AND/OR SERVICES, INCLUDING WITHOUT LIMITATION CONTENT, YOUR ABILITY OR INABILITY TO ACCESS, VISIT AND/OR USE THE SERVICE, INCLUDING DAMAGE TO YOUR COMPUTER, MOBILE OR OTHER DEVICE, OR FOR SOFTWARE DISABLING DEVICES, TIME BOMBS, VIRUSES, WORMS, BUGS, OR DEVICES OR DEFECTS OF SIMILAR NATURE ALLEGED TO HAVE BEEN OBTAINED FROM THE SERVICE, YOUR ACCESS, VISITATION, AND/OR USE OF, OR RELIANCE ON, THE SERVICE OR ANY OF THE MERCHANDISE, PRODUCTS, SERVICES AND/OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR LIABILITY TO YOU EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU DURING THE PERIOD IN WHICH THE CLAIM AROSE. SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE AGREEMENT IS NOT SUBJECT TO THE LAWS OF SUCH STATES, BUT TO THE EXTENT A CLAIM IS BROUGHT THEREIN, OUR LIABILITY AND WARRANTIES ARE LIMITED TO THE EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR”.

Your payment for service represents your signature and agreement to all terms expressed on this page.

10. Termination or Suspension of the Service, Your Use of the Service, and/or the Agreement:
11. We reserve the right, in addition to our other remedies, to terminate, discontinue, suspend and/or restrict the Service, your account/profile, your ability to access, visit and/or use the Service or any portion thereof, and/or the Agreement, including without limitation any of our purported obligations hereunder, for any or no reason, with or without notice. In the event of any termination or discontinuation of your account/profile, your ability to access, visit and/or use the Service or any portion thereof, and/or the Agreement, we reserve the right, in addition to our other remedies, to reassign, and/or allow another user to use, your password and/or User ID. This magazine retains the right to reject advertising that we think is inappropriate to our audience.
12. Even if the Service, your ability to access, visit and/or use the Service or any portion thereof, and/or the Agreement is terminated, discontinued, suspended or restricted, by you or by us, we have no obligation to (but we may in our discretion) remove any Content, and therefore copies of all information with regard to your account/profile and/or Content you may have posted, uploaded, transmitted, sent or otherwise made available on or through the Service, may be retained and/or remain viewable by us, our licensors, vendors, service providers and/or other third parties, including other users. Nevertheless, we have no obligation to retain, store, or provide you with any information with regard to your account/profile and/or Content you may have posted, uploaded, transmitted, sent or otherwise made available on or through the Service. All provisions of the Agreement shall survive the termination or expiration of the Agreement and/or your account/profile.
13. Communications to You:
14. The communications between you and us usually use electronic means, whether you access, visit or use the Service, send us messages, or whether we post notices on the Service or communicate with you via messaging. For contractual purposes, you (a) consent to receive communications from us in electronic form; and (b) agree that all notices, documents, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. Your consent to receive communications and do business electronically, and your agreement to do so applies to all of your interactions and transactions with us.
15. You understand and agree that joining the Service may include receiving certain communications from us, such as transactional or relationship messages, and/or messages about your account/profile, and that these communications are considered part of your account/profile and you may not be able to opt out of receiving them without ceasing to be a registered user of the Service.

10. Associated Press:

By accessing this Service, you specifically acknowledge and agree that: (i) Associated Press text, photo, graphic, audio and/or video material shall not be published, broadcast, rewritten for broadcast or publication or redistributed directly or indirectly in any medium, and shall be subject to all terms and conditions made available at the AP Terms and Conditions web page available here http://www.ap.org/termsandconditions/; (ii) No Associated Press materials nor any portion thereof may be stored in a computer except for personal and non-commercial use; (iii) The Associated Press will not be held liable for any delays, inaccuracies, errors or omissions therefrom or in the transmission or delivery of all or any part thereof or for any damages arising from any of the foregoing; (iv) The Associated Press is an intended third party beneficiary of these terms and conditions and it may exercise all rights and remedies available to it; and (v) The Associated Press reserves the right to audit possible unauthorized commercial use of AP materials or any portion thereof at any time.

13. Mobile Participants:

You understand and agree that various entities unaffiliated with us make up the “mobile ecosystem” that enables you to access, visit and/or use the Service via your computer, mobile or other device, including without limitation equipment, hardware and software manufacturers and providers, telephone, mobile, wireless, and Internet network providers and carriers, and sellers or providers of Content for use with the Service (collectively, the “Mobile Participants”). We do not represent, warrant or guarantee that all portions of the Service, or the Service as a whole, can be accessed via all mobile or other devices, or via all carriers and service plans at all times of day and night nor is available in all geographic locations. THESE MOBILE PARTICIPANTS MAY REQUIRE THAT YOU AGREE TO THEIR ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS AND/OR RULES. YOUR COMPLIANCE WITH ANY SUCH ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS AND/OR RULES IS SOLELY YOUR RESPONSIBILITY AND WILL HAVE NO EFFECT ON YOUR CONTINUING OBLIGATION TO COMPLY WITH THE AGREEMENT WHEN USING THE SERVICE. WE AND OUR INDEMNITEES SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE ACTS OR OMISSIONS OF SUCH MOBILE PARTICIPANTS. We have agreements with some of these Mobile Participants that require us to make certain disclosures and pass along certain responsibilities to you. For such Mobile Participants, you specifically acknowledge and agree that: (i) the Agreement is between us and you; the Mobile Participants are not parties to the Agreement; (ii) the Mobile Participants and their parent, subsidiaries and affiliates are third party beneficiaries of the Agreement and upon your acceptance of the terms and conditions of the Agreement, the Mobile Participants will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you; (iii) the license granted to you hereunder is limited to a non-transferable license to use the Service on the particular product authorized by the applicable Mobile Participant that you own or control and as permitted by such Mobile Participant’s applicable usage rules; (iv) Mobile Participants have no obligation whatsoever in connection with the functionality or content of the Service, or to furnish any maintenance or support services with respect to the Service; (v) in the event of any failure of the Service to conform to any applicable warranty, you may be able to notify the applicable Mobile Participant to receive a refund of all or part of the amount you paid for the Service, if any (to the maximum amount permitted by applicable law, Mobile Participants will have no other warranty obligation whatsoever with respect to the Service); (vi) Mobile Participants are not responsible for addressing any claims, losses, liabilities, damages, costs or expenses by you or a third party relating to the Service or your possession, access, visitation and/or use of the Service, including without limitation (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and (vii) in the event of any third party claim that the Service or your possession, access, visitation and/or use of the Service, infringes such third party’s intellectual property rights, Mobile Participants are not responsible for the investigation, defense, settlement and/or discharge of such claim.

14. Disputes and Jurisdiction:

A. The Service is based in the Philippines. It is designed, customized and intended for, and directed to Singapore only. Those who choose to access, visit and/or use the Service do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. We make no representation, warranty or guarantee that the Service, or any merchandise, products, services, and/or Content available on or through the Service are appropriate, available, or legal in any particular geographic location.

B. In any dispute between us, your sole remedy is to stop using your account/profile and/or the Service, including without limitation cancelling any Fee-based services. This includes any dispute related to or arising out of: (i) rules, restrictions, limitations, terms and conditions that apply to the Service, whether listed in this User Agreement and Privacy Policy, posted at various points in the Service, or otherwise communicated to you, including our enforcement, non-enforcement, or application of any such rules; (ii) any of our policies and/or practices, including our enforcement, non-enforcement, or application of any such policies and/or practices; (iii) any Content available on or through the Service, or any edits, deletions, additions, or other changes thereto; (iv) your ability or inability to access, visit and/or use portions of the Service, or the Service as a whole, or features, functionality, and/or Content available on or through the Service; or (v) the amount, type, and/or basis for determining any Fees, any changes thereto, or additional Fees.

C. You agree that in the event of any dispute between us, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitations, any court action. In the event of any court action, all disputes will be resolved individually, without resort to any class action, and you specifically waive your right to a trial by jury. Furthermore, you agree that any cause of action must commence within three (3) months after the underlying issue first arose; otherwise, you waive any right to bring such cause of action and such cause of action is permanently barred.

D. You agree that, regardless of where you access, visit and/or use the Service, all issues concerning the construction, validity, interpretation, and enforceability of the Agreement shall be governed and construed in accordance with the laws of The Philippines, without regard to any principles of conflict of laws. Any disputes that result in court action will be resolved exclusively by a state or federal court located in Cebu, The Philippines, where the Service is headquartered, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non-convenience. Should there be a conflict between the laws of The Philippines where the Service is headquartered, and any other laws, the conflict will be resolved in favor of the laws of such Philippine State where the Service is headquartered. To the extent permitted by applicable law, all judgments or awards shall be limited to actual out-of-pocket damages (excluding attorneys’ fees) and shall not include any indirect, punitive, incidental and/or consequential damages.

1. E. If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be invalid or unenforceable, that provision or portion will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of the Agreement will continue to be valid and enforceable in full force and effect

General:

1. We reserve the right to post, from time to time, additional rules that apply to certain portions of the Service, or the Service as a whole. Such additional rules will be posted in the relevant portions of the Service, and are hereby incorporated into the Agreement by this reference. Your continued access, visitation and/or use of the Service constitutes your agreement to comply with these additional rules.
2. The rules, restrictions, limitations, terms and conditions that apply to the Service, whether listed in this User Agreement and Privacy Policy, posted at various points in the Service, or otherwise communicated to you, constitutes the Agreement and entire understanding between the parties, and supersedes prior agreements between the parties, whether oral or written, with respect to the subject matter hereof. Unless explicitly stated in writing by us, any new or additional features, functionality, or Content that augment or enhance the Service, including the release of updates, upgrades, new products and/or services, shall be subject to the terms and conditions of the Agreement.
3. Any delay or failure by us to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. No waiver by us shall have effect unless such waiver is set forth in writing, signed by us; nor shall any such waiver of any breach or default constitute a waiver of any subsequent breach or default.
4. We may sub-license, transfer, sell or assign the Agreement, and/or any of our purported obligations hereunder, at any time to any person or entity, with or without notice. You may not sub-license, transfer, sell, or assign the Agreement at any time to any person or entity, and any attempt to do so will be null and void.

I positively hate that sort of legal jargon. There’s “the law” and there’s the reality of life. Now I’ll discuss life’s reality.

Life’s reality is I, Dr. Stephen Newdell, Publisher and WebMaster (American Citizen and resident for 63-years) am located in South East Asia, most of the time near Cebu City, The Philippines. I maintain a residence and banking in Fort Myers, Florida.

I do all I can to run an honest business and help clients and business owners get more website visitors and more customer traffic. I do not discriminate against anyone by reason of any social construct.

As expressed earlier, we run a God-Fearing decent magazine here. If I learn that an ad is pointing to a website that changed and now is promoting something blatantly immoral, (essentially anything known to be generally illegal as for examples sale of illicit drugs, human trafficking, sale of illegal firearms or other weapons, or pornography) the ad link will be disabled and the owner contacted. Such an issue can be caused by a computer virus that redirects traffic — but it’s rare.

My personal computer and the website are well protected against such malicious software. If it turns out the advertiser is deceptive purposefully, the advertisement will be deleted without refund. However, what links he maintains on his website are none of my business. I cannot be expected to censure other businesses or other people.

If it turns out, after my investigation, there’s no problem on the website in question — but the complainant saw something “wrong,” I’ll endeavor to inform said complainant that there’s a virus in his/her computer and s/he should seek professional help to remove it.

Intellectual Property   I maintain the legal position that anything on the Internet is de facto public domain. Once it is published on the “worldwide web” it has been given away as public property and anyone can use it, or alter it and use what they have found. There are hundreds of millions of web pages and billions of photographs on the web and anyone can use anything. A photo can be slightly lightened or contrast changed and it’s no longer the photographer’s photo. That’s why morphers can alter a photograph using PhotoShop and get away with nearly anything. In any case, I will not go to civil court with anyone over such a dispute. However, if someone complains that they think I’m using their article, photo, or ad improperly, I’ll remove it immediately and replace it with something else, perhaps similar, but certainly not “the same.”

All the above has been written to protect myself, and it’s a shame that such is necessary, but we live in a litigious society and going without self-defense is foolish.

If you have any problem, just tell me and I’ll make it right including refund your money if we agree that’s the fair thing to do.

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