SIOUX FALLS HOT SPOTS, LLC TERMS OF AGREEMENT
These terms of agreement ("General Terms") apply to all Sioux Falls Hot Spots advertising placements placed by Customer on the Sioux Falls Hot Spots, LLC (hereinafter "Hot Spots")
1. Acceptance of Order(s) and Term of Agreement. Each Order placed by Customer, together with these General Terms and the terms specific to Customer's Order(s), constitute a
binding contract (the "Agreement"). In the event that a conflict between these General Terms and the terms of the specific Order, the written terms of the Order shall control. Except
as otherwise specified in this Agreement, the term of each Order commences upon the placement of such Order and continues until the expiration of the service life of the Order.
2. Payment Terms. Unless otherwise agreed in writing, Customer shall pay the amount specified in the Order at time of the placement of the Ad, if monthly payments are desirable
to Customer, each payment is immediately due upon receipt of an invoice. An additional charge of $25.00 will be assessed to Customer for each check returned for non-sufficient funds
(the "NSF Fee"). Hot Spots shall be entitled to cancel any or all advertising and terminate the Agreement if Customer is delinquent more than thirty (30) days in any payments due Hot
Spots. Any amounts not paid when due may thereafter bear a late charge at the rate of 1.5% per month.
3. Subcontract and Assignment. Customer may not subcontract, license, sublicense, convey, transfer, assign, sell, re-sell or barter any of its right for or in Advertising under
4. Advertising Content and Intellectual Property Rights. All works, including, but not limited to text, graphics, images, illustrations, artwork, maps, photographs, layouts,
fonts, visual and audio recordings, web sites, software, codes and other content in whatever form or media designed, developed, created or procured for the Advertising will be the sole
exclusive property of Hot Spots including but not limited to Photographs. Customer agrees that it will produce and deliver any and all Customer Content, in accordance with the
specifications and schedules established by Hot Spots from time to time. Customer acknowledges and agrees that its failure to comply with such specifications and schedules may cause
the publication to be delayed or refused and Hot Spots will have no liability for such delay or refusal. Customer assumes sole responsibility for the protection of its trade names,
trademarks, service marks, copyrights, patents and other intellectual property rights in all of Customer's Content appearing in its Advertising. Customer agrees that Hot Spots will
have the continuing right to review, select from or among, revise and reject Customer's Content, in Hot Spot's sole discretion for any reason. Hot Spots will have no liability to any
third party for any advertising containing such Customer's Content and Customer shall be solely liable therefore. Hot Spots does not guarantee the production quality of Customer's
Content or that it will provide Customer with an opportunity to review any particular Ad prior to its publication. Further, Hot Spots makes no representation, warranty or guarantee,
express or implied, to Customer concerning the success or results of any Ad or concerning the number of people who view the website.
5. Customer Warranties and Representations. Customer warrants and represents to Hot Spots that: (a) Customer owns or has necessary authorizations and licenses to Customer's
Content described herein to Hot Spots for all purposes contemplated in this Agreement; (b) the publication of the Advertising on the website and Hot Spot's exercise of any rights
granted under this Agreement will not in any way constitute an infringement or other violation of any copyright, trademark, or other proprietary or intellectual property right of any
third party; (c) Customer is authorized to advertise all business, service, and products described in the Advertising; and (d) Customer's content will not include any obscene or
defamatory matter or violate any right of privacy or publicity.
6. Indemnification. Customer agrees to indemnify, hold harmless, and defend Hot Spots, its affiliates and their owners, directors, officers, employees and agents against any and
all claims, demands, actions, damages, penalties, expenses, attorneys fees, and any other liability arising or resulting from: (a) any breach of Customer's warranties, representations,
or covenants in this Agreement; (b) any misrepresentation or false statement or claim in any Ad; and (c) a third party claim that the Customer Content or use of a portion of the
content by Hot Spots, infringes, violates or misappropriates a patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party.
7. LIMITATION OF LIABILITY. HOT SPOTS DISCLAIMS ANY WARRANTORS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT: (A) THIS
IS A COMMERCIAL TRANSACTION; (B) ALTERNATIVE AND COMPETING ADVERTISING MEDIA ARE AVAILABLE; AND (C) OCCASIONAL DISPUTES RELATED TO THE ADVERTISING OR TO THE PUBLICATION OR DISTRIBUTION
THEREOF MAY ARISE AND POTENTIAL HARM THEREFROM IS SPECULATIVE. THEREFORE, IN NO EVENT SHALL HOT SPOTS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR GOODWILL) WHETHER IN CONTRACT, TORT OR OTHERWISE; AND CUSTOMER HEREBY KNOWINGLY AND EXPRESSLY WAIVES THE
SAME. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. HOT SPOTS LIABILITY IN THE CASE OF ANY ADVERTISING OR OTHER DISPUTE OF
WHATEVER NATURE SHALL NOT EXCEED THE AMOUNT CUSTOMER PAID FOR THE ADVERTISING AT ISSUE. IF FOR ANY REASON, HOT SPOTS ELECTS NOT TO PUBLISH OR FAILS TO PUBLISH ANY ADVERTISING, HOT
SPOTS LIABILITY AND CUSTOMERS REMEDY SHALL BE LIMITED TO A REFUND OF ANY PAYMENTS ACTUALLY MADE TO HOT SPOTS BY CUSTOMER FOR SUCH ADVERTISING. IN THE EVENT THAT THE DISPUTE IS BASED
UPON AN ERROR, OMISSION OR MALFUNCTION IN AN AD, THEN CUSTOMER'S REMEDY SHALL BE LIMITED TO A PRO-RATA REDUCTION OR REFUND OF THE CHARGES FOR THE AD IN THE SAME PROPORTION AS THAT
ERROR, OMISSION, OR MALFUNCTION REDUCES, IF AT ALL, THE VALUE OF THE AD TO THE CUSTOMER. THE REMEDIES SET FORTH IN THIS PARAGRAPH SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.
8. Entire Agreement. Customer's Order(s), together with the General Terms, constitute the entire Agreement between the parties and supersedes all prior agreements, whether
express or implied, or whether written or oral, between the parties with respect to the subject matter hereof. This Agreement may not be amended, modified, or supplemented, nor may any
obligations hereunder be waived by a party, except by written instrument signed by both parties.