SwingU Terms and Conditions
1. Advertising Services. These Terms and Conditions (together with the Insertion Order hereof, this “Agreement”) is entered into by and between Swing by Swing Golf, Inc., a Delaware corporation (the “Publisher”) and the entity named on the Insertion Order hereof (the “Advertiser”). The Publisher shall use commercially reasonable efforts to provide the advertising services (the “Services”) as selected on the Insertion Order by the Advertiser in its various multi-media platforms, including, without limitation, its website, app, e-mail platform, digital platforms, and social media platforms, as set forth in this Agreement. Any advertising submitted by the Advertiser shall be in a form and substance reasonably acceptable to the Publisher. The Publisher has the right to edit, copy, and determine the appropriate use of any content or photographs provided by the Advertiser to the Publisher in connection with this Agreement.
2. Payment. The Advertiser shall pay fee(s) in the amount and manner set forth in the campaign type selected by the Advertiser on the Insertion Order. No advertisement will be published until such fee(s) are paid by the Advertiser to the Publisher as set forth herein.
3. Term. The term of this Agreement is as set forth in the media program selected by the Advertiser on the Insertion Order. Publisher may terminate this Agreement, in whole or any part, at any time in Publisher’s sole and absolute discretion. If either party commits a material breach of any provision of this Agreement, the other party may terminate this Agreement at any time, provided that the breaching party fails to cure the breach within ten (10) days of receiving written notice of the non-breaching party’s intent to terminate. Further, should either party: (i) be adjudged or become insolvent; (ii) have any proceedings instituted by or against it in bankruptcy, under insolvency laws, or for the party’s reorganization, receivership, dissolution, or liquidation; (iii) make an assignment for the benefit of creditors or any general arrangement with creditors; or (iv) discontinue business or adopt a resolution calling for same, the other party may terminate this Agreement for cause upon written notice to the other party. Except as set forth herein or on the Insertion Order hereof, this Agreement is non-cancelable by the Advertiser and shall not be dependent upon the Publisher’s receipt of copy or other materials from the Advertiser. Upon termination or expiration of this Agreement, the Publisher will, in addition to any other obligations of the Publisher on termination or expiration, (i) cease all performance of the terminated Services and furnish to the Advertiser all completed deliverables and work in progress; (ii) return to the Advertiser all copies of any confidential or proprietary information of the Advertiser related to the terminated Services, and cease all use of these materials; and (iii) within thirty (30) days, provide a full accounting itemizing all Services performed prior to termination for which the Publisher has not yet received payment. At the conclusion of the performance of this Agreement and providing that full payment has been received from the Advertiser by the Publisher for the Services, the Publisher shall return to the Advertiser all written materials constituting or incorporating any communications or information obtained from the Advertiser. Notwithstanding the foregoing, the Publisher reserves the right to dispose of any advertising materials six (6) months after the termination of this Agreement. Upon Advertiser’s specific approval, the Publisher may retain copies of such materials, subject to the requirements of Section 11 hereof.
4. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL THE PUBLISHER BE LIABLE TO THE ADVERTISER OR ANY THIRD PARTY CLAIMING BY OR THROUGH SUCH OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, COSTS OF DELAY, LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, LATE PUBLICATIONS, OR FAILURE OF AN ADVERTISEMENT TO APPEAR FOR ANY CAUSE WHATSOEVER, EVEN IF THE PUBLISHER HAS BEEN ADVISED AS TO THE LIKELIHOOD OF THE SAME.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE PUBLISHER BE LIABLE IN ANY WAY FOR AN AMOUNT GREATER THAN THE PAYMENT OWED TO THE PUBLISHER UNDER SECTION 2 ABOVE.
5. Representations, Warranties and Covenants. The Advertiser represents, warrants and covenants (as applicable) that (i) the information provided by it to the Publisher for the purpose of preparing or publishing any advertisement of, or relating to the Advertiser’s trade or business, is true and accurate, (ii) the advertisements will not violate any criminal laws or any rights of any third parties, including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any antidiscrimination law or regulation, or any other right of any person or entity, and (iii) the advertisements do not now, and will not, include any material that is unlawful, harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically 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 local, state, federal or international law.
6. Delivery of Materials. In the event Publisher produces copy and other materials, Advertiser shall have an opportunity to approve such copy and materials in its reasonable discretion. If copies and other materials necessary to produce the advertisement must be supplied by the Advertiser, Publisher shall request such in writing. In the event that such copies are not received by the applicable due date established by the Publisher in writing to the Advertiser (the “Material Due Date”), the Publisher reserves the right to obtain the necessary materials at the expense of the Advertiser and to produce an advertisement that will not be subject to the Advertiser’s prior approval. The Publisher will not accept, and has no obligation to incorporate, changes to copy or other materials unless such changes are received by the Publisher prior to the Material Due Date. The Advertiser’s property, copy, artwork, etc. are held at the risk of the Advertiser. Upon the reasonable request of the Advertiser and provided that the requested advertising materials are provided to the Publisher by the Material Due Date, the Publisher will provide a proof of any advertisement. If the proof is not returned by the Advertiser to the Publisher by the date established on the proof for approval of changes, the advertisement will run as it appears in the proof.
7. Intellectual Property Rights. Neither party will acquire any ownership interest in each other’s intellectual property. The Publisher shall have the right to place the Advertiser’s logo, trade name and trademark on any advertising from the Advertiser and to otherwise use such items in connection with the purposes of this Agreement. It is the intent of the Publisher that any and all publications under this Agreement shall be copyrighted publications and the Publisher reserves all rights related to such copyrights. The Advertiser also hereby grants the Publisher a royalty-free worldwide license, without payment or other charge therefore, to use, display, perform, reproduce and distribute the advertisements.
8. Force Majeure. The Publisher shall not be liable to the Advertiser for any failure or delay in its performance due to any cause beyond its control, including acts of war, acts of God, earthquake, riot, sabotage, labor shortage or dispute, Internet interruption, pandemic, government acts, and other similar events.
9. Miscellaneous. This Agreement constitutes and contains the entire Agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. This Agreement may not be modified or amended, except by an instrument in writing signed by duly authorized officers of both of the parties hereto. The Advertiser may not assign this Agreement in whole or in part, by operation of law or otherwise, without the Publisher’s prior written consent, and any attempted assignment of this Agreement without such consent will be null and void. This Agreement will be deemed entered into in the State of Connecticut and will be governed by and interpreted in accordance with the laws of the State of Connecticut, excluding that body of law known as conflicts of law. EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO A TRIAL BY JURY. The provisions of this Agreement relating to payment of any fees or other amounts owed, confidentiality, limitations of liability and intellectual property shall survive any termination or expiration of this Agreement. The terms of this Agreement are the confidential information of Publisher. This Agreement has been negotiated and drafted by both parties, with counsel from both parties reviewing the document. The language in this Agreement shall be construed as to its fair meaning and not strictly for or against either party.
10. Warranty. The Publisher covenants and warrants that the Publisher will perform all Services in accordance with the standards and practices of care, skill, and diligence customarily observed by similar firms under similar circumstances at the time the Services are rendered. The Publisher warrants that all Services shall comply with all specifications and/or other requirements as set forth herein, and shall be free of defects in workmanship. If the Services do not meet the warranties specified herein, the Advertiser may, at its option, (i) require the Publisher to correct at no cost to the Advertiser any defective or nonconforming item, or (ii) correct the defective or nonconforming item itself and charge the Publisher with the cost of such correction. The foregoing remedies are in addition to all other remedies at law, in equity, or under this Agreement, and shall not be deemed to be exclusive.
11. Confidentiality. During the term of this Agreement and for a period of one (1) year thereafter, neither party will use or disclose any Confidential Information (as such term is defined below) of the other party except as specifically contemplated herein. The foregoing restriction shall not apply to information that (i) has been independently developed by the receiving party, (ii) has become publically known through no wrongful act of the receiving party, (iii) has been rightfully received from a third party authorized to make such disclosure, (iv) has been approved for release by the disclosing party in writing, or (v) is required to be disclosed by a court or authorized governmental agency of competent jurisdiction. For purposes hereof, the term “Confidential Information” shall mean (i) advertisings, prior to publication, and (ii) any information designated in writing by the disclosing party as being “confidential” or “proprietary.”
12. Compliance with Laws. In the performance of this Agreement, each party shall at all times comply with all applicable governmental laws, statutes, ordinances, rules, regulations, orders, and other requirements. In the event that the other party’s assistance is necessary to achieve such compliance, the party shall promptly notify such other party. Upon a party’s request, the other party shall provide such party with documentation demonstrating the party’s compliance. After reasonable notice and under reasonable conditions, each party shall have the right to inspect and copy any records of the other party regarding such compliance.