Last Updated – September 2014
HuskersToday.com Ads Terms and Conditions
1. INTRODUCTION. This is an agreement between you (“Advertiser” or “You”) and HUSKER SPORTS MEDIA, LLC.(“HUSKER SPORTS MEDIA”).
This agreement applies to Your participation in the HuskersToday.com program (“HuskersToday.com”) and/or the HuskersToday.com online advertising program (collectively, the “HuskersToday.com Program”). No other terms of any sort appearing in any other communications from You to HUSKER SPORTS MEDIA in connection with the HuskersToday.com Program services alter or supplement this agreement. You represent and warrant that You are authorized to enter into this agreement and act on behalf of any third party for which You facilitate the HuskersToday.com Program, and that Your use of the HuskersToday.com Program is for commercial purposes only. HUSKER SPORTS MEDIA may change this agreement at any time upon notice to You in accordance with the provisions of Section 13. Your continued participation in the HuskersToday.com Program after any such notice will signify Your acceptance of such change.
2. HUSKERSTODAY.COM. Subject to Your compliance with this agreement, and such other rules and procedures governing Your participation in the HuskersToday.com Program as HUSKER SPORTS MEDIA may publish from time to time, which include but are not limited to those rules available at http://www.huskerstoday.com, HUSKER SPORTS MEDIA grants You a limited, non-exclusive, non-transferable license to access the HuskersToday.com Program through the HuskersToday.com website, currently located at http://www.huskerstoday.com; the Husker Sports Media website, currently located at http://huskersportsmedia.com;and certain related websites (collectively, “HuskersToday.com Site”)and the HuskersToday.com.
- CONTENT. Advertisements may include, at HUSKER SPORTS MEDIA’s discretion, text, graphics, a listing title, a listing description, or other features. You may be able to opt-in or opt-out of some of these features. You will provide HUSKER SPORTS MEDIA with text, logos, images, URLs and other content (“Content”) for the Advertisements. The Content, the Advertisements, and any website to which such Advertisements link will comply with the published requirements for the HuskersToday.com Program including its trademark policies, editorial guidelines and creative specifications as well as all applicable laws, rules, regulations, and guidelines. You will ensure that the Content does not contain legally prohibited or banned objects. You grant HUSKER SPORTS MEDIA and its Affiliates a nonexclusive, royalty-free, worldwide right and license to reproduce, publicly perform, display, distribute, resize or edit the Content for the purpose of providing services to You in connection with this agreement and for the purposes of providing search results and related HUSKER SPORTS MEDIA services. Your failure to meet applicable time requirements or specifications in connection with the delivery of Content may delay or prevent placement of the Content on HuskersToday.com and/or related HUSKER SPORTS MEDIA services, or cause its removal from the HuskersToday.com and/or related HUSKER SPORTS MEDIA services. HUSKER SPORTS MEDIA may, at its sole discretion, label any Advertisement as a “sponsored site,” “advertisement” or similar designation for clarification purposes.
4. PROHIBITED CONDUCT. Your access to the HuskersToday.com Program is limited to You and to the rights granted under this agreement. You acknowledge that You will not access or use the HuskersToday.com Program for any other entity or for any purpose other than as described in this agreement. Without limiting the generality of the foregoing, You will not (and will not authorize any third party to): (i) modify or create any derivative work based on the HuskersToday.com Program; (ii) reverse engineer, disassemble or decompile any intellectual property in the HuskersToday.com Program or API or discover or recreate the source code of any software in the HuskersToday.com Program or API, except as permitted by law notwithstanding any contractual prohibition (and in those cases, You will use the appropriate interoperability and other data if made available by HUSKER SPORTS MEDIA); (iii) remove, obscure, or alter any notice of copyright, trademark, trade secret, or other proprietary right related to the HuskersToday.com Program; (iv) use any automated means, including, without limitation, agents, robots, scripts or spiders, to access the API or bypass HUSKER SPORTS MEDIA’s tools or services to interfere or attempt to interfere with the proper working of HuskersToday.com Site or the API; (v) take any action that imposes an unreasonably or disproportionately large burden on HUSKER SPORTS MEDIA’s infrastructure, including the API, as determined by HUSKER SPORTS MEDIA in its reasonable discretion; or (vi) otherwise engage in any other unlawful or fraudulent practices in connection with your use of the API or the HuskersToday.com Program. You will not implement or use technology that prevents a user from using the “Back” button on such user’s browser to return to the prior site or any HUSKER SPORTS MEDIA site.
5. PAYMENT AND REPORTING. (For HuskersToday.com, Section 20 HUSKERSTODAY.COM – PAYMENT AND REPORTING will apply instead of Sections 6.a.-6.g.; Sections 6.h. and 6.i. apply to all HuskersToday.com Programs)
a. Basis for payment. You agree to pay HUSKER SPORTS MEDIA the charges due for your participation in the HuskersToday.com Program, which HUSKER SPORTS MEDIA will compute according to its standard methodology then in effect. The reports available to You on the HuskersToday.com Site will calculate the charges You owe according to the standard methodology. The reports will be the exclusive standard for billing. It is Your responsibility to review, print and save a copy of each online report and to retain copies for Your records. You may authorize a third party to pay Your HuskersToday.com Account on Your behalf, but You are responsible for any payment obligations arising out of Your participation in the HuskersToday.com Program. You may elect to participate in the HuskersToday.com Program on a Prepay or Postpay basis.
b. Postpay Calculation. If You participate in the HuskersToday.com Program on a postpay basis, You will have the choice between monthly invoice billing and threshold billing. If You elected monthly invoice billing, subject to credit approval, HUSKER SPORTS MEDIA will send You an invoice at the end of Your billing cycle for the amount due, with payment due on the due date in the invoice. If You elected threshold billing, HUSKER SPORTS MEDIA will charge your HuskersToday.com Account whenever You reach Your billing threshold amount or on Your monthly billing date, whichever comes first. You authorize HUSKER SPORTS MEDIA to automatically charge Your payment method for the balance due upon reaching threshold amount, or the end of Your billing cycle, whichever occurs first.
c. Prepay Calculation. If You elect to participate in the HuskersToday.com Program on a prepaid basis, You agree to pay HUSKER SPORTS MEDIA a specified amount prior to initiating an advertising campaign(s). You will be asked to set the amount to be charged during creation of a new account or advertising campaign. You may change the prepaid amount to be charged at any time via the HuskersToday.com Site. However, You may be subject to certain minimum and maximum charge requirements depending on Your location, currency, or payment method, among other things. You will be notified when Your prepaid account reaches a minimum balance threshold, at which time You must make a payment to replenish Your prepaid account, or, if You have elected automatic payments, You authorize us to charge Your payment method to replenish Your prepaid account.
d. Payment Method Selection; Payment Information. You will select an available payment program (i.e., prepaid or postpay) when You enroll in the HuskersToday.com Program. You will provide to HUSKER SPORTS MEDIA all payment information (e.g., credit card, debit or check card number) required for such payment program. You represent and warrant to HUSKER SPORTS MEDIA that You are authorized to use the payment method(s) provided to HUSKER SPORTS MEDIA, and that all payment information that You provide to HUSKER SPORTS MEDIA, including Your card account number, billing address and card expiration date, is true and accurate, and You agree that You will promptly update HUSKER SPORTS MEDIA with any changes to such payment information. Your use of the HuskersToday.com Program constitutes Your authorization for HUSKER SPORTS MEDIA to charge Your payment method for any prepaid amounts or any amounts incurred in connection with the HuskersToday.com Program. HUSKER SPORTS MEDIA may submit such charges for payment utilizing the payment information that You supplied and You will pay any such charges. You further authorize HUSKER SPORTS MEDIA to use any updated account information regarding Your payment method provided by Your issuing bank or the applicable payment network.
e. Payment Frequency. If You elect automatic payment, You authorize HUSKER SPORTS MEDIA to charge Your payment method on an ongoing basis for incurred fees (if any) for postpay accounts, or to replenish Your prepaid account, in accordance with the applicable payment program. HUSKER SPORTS MEDIA will suspend the display of Your Advertisements (i) for the remainder of any calendar month once an applicable monthly budget is reached, (ii) if You fail to pay Your invoice by the stated invoice due date, (iii) if Your payment method is rejected (e.g., expired card, insufficient funds), or (iv) on the end date You specify in Your HuskersToday.com Account. For the avoidance of doubt, HUSKER SPORTS MEDIA may resume displaying Your Advertisements on the first day of each subsequent calendar month if You do not specify an end date in Your HuskersToday.com Account.
f. Revocation of Payment Method. You may revoke at any time Your authorization for HUSKER SPORTS MEDIA to automatically charge Your payment method for ongoing fees or other charges by suspending the applicable campaign(s) via the applicable HuskersToday.com Site, which will be effective no later than the end of the second business day after You suspend a particular campaign. You acknowledge that any revocation of such authorization may require the removal of Your Content from . You further acknowledge that (i) You remain responsible for all fees incurred through the end of the second business day following the date on which You revoke Your authorization, (ii) HUSKER SPORTS MEDIA may charge Your payment method for any unpaid amounts at the end of the billing period following the date on which You revoke Your authorization, and (iii) HUSKER SPORTS MEDIA will refund any amounts remaining in Your prepaid account balance, subject to application of such funds to any outstanding amounts due by You.
g. Default; Billing Disputes. If You are in default of Your obligations, HUSKER SPORTS MEDIA may immediately charge Your payment method for any other amounts owing (e.g., amounts owing on other accounts or campaigns), remove Your Content or any part thereof from , and terminate this agreement in addition to any other rights or remedies HUSKER SPORTS MEDIA may have. Removal of the Advertisements will not relieve You of Your obligation to pay fees owing to HUSKER SPORTS MEDIA that accrue prior to such removal. You understand that third parties may generate impressions or clicks on Your Advertisements for prohibited or improper purposes, and You accept the risk and related fees of any such impressions and clicks. You must notify HUSKER SPORTS MEDIA in writing of any disputed amount within 45 days following the date of an invoice or charge to Your payment method, whichever occurs first, or Your dispute will be waived. You may dispute only amounts You believe resulted from a billing error or fees You did not agree to pay. Following receipt by HUSKER SPORTS MEDIA of such written notice, HUSKER SPORTS MEDIA will research such inquiry and will notify You of a resolution within a reasonable time, subject to applicable law. HUSKER SPORTS MEDIA will resolve such inquiry at its sole discretion, and HUSKER SPORTS MEDIA has no obligation to provide a particular remedy to You. Any remedy HUSKER SPORTS MEDIA provides will be Your sole and exclusive remedy for such dispute. If You fail to provide HUSKER SPORTS MEDIA with timely written notice of the disputed invoice or charge, You remain obligated to pay the full invoiced amount. If HUSKER SPORTS MEDIA does not resolve the dispute to Your satisfaction and You wish to pursue it, You must follow the dispute resolution process in Section 11.
h. Taxes. Fees do not include any federal, state, local, municipal, or other governmental taxes, duties, levies, fees, excises, or tariffs. Neither of us is liable for any of the taxes of the other party that the other party is legally obligated to pay and which are incurred or arise in connection with or related to the transactions contemplated under this agreement, and all such taxes (including but not limited to net income or gross receipts taxes, franchise taxes, property taxes, and/or taxes arising from sales between a party and its subscribers or customers) will be the financial responsibility of the party who is obligated by operation of law to pay such tax. You will pay HUSKER SPORTS MEDIA any sales, use or value added taxes that are owed by You solely as a result of entering into this agreement and which are required to be collected under applicable law. HUSKER SPORTS MEDIA may provide You with a valid exemption certificate in which case You will not collect the taxes covered by such certificate. You agree to indemnify, defend and hold HUSKER SPORTS MEDIA and its Affiliates harmless from any taxes (including sales or use taxes) or claims, causes of action, costs (including, without limitation, reasonable attorneys’ fees) and any other liabilities of any nature whatsoever related to Your taxes. If any taxes are required to be withheld on payments made by You to HUSKER SPORTS MEDIA, You may deduct such taxes from the amount otherwise owed and pay them to the appropriate taxing authority. You will secure and deliver to HUSKER SPORTS MEDIA an official receipt for those withholdings and other documents reasonably requested by HUSKER SPORTS MEDIA in order to claim a foreign tax credit or refund. You will use reasonable efforts to ensure that any taxes withheld are minimized to the extent possible under applicable law. If You are located in Argentina and if the stamp tax is deemed applicable, for the avoidance of doubt, You will pay the corresponding stamp tax related to this agreement and then HUSKER SPORTS MEDIA will reimburse You the amount You paid for the stamp tax. After the stamp tax has been paid, You will submit to HUSKER SPORTS MEDIA a copy of the acknowledgement of the payment made. If You are located in Australia or New Zealand, the fees are exclusive of goods and services tax, value added tax, sales, or like taxes (‘GST’). If GST is applicable to any transactions made under this agreement, in addition to the fees, You will pay an additional amount to HUSKER SPORTS MEDIA equal to the GST for which HUSKER SPORTS MEDIA is liable in respect of the transaction. If you are located in Brazil, the parties are not liable for any of the taxes of the other party that the other party is legally obligated to pay and which are incurred or arise in connection with or related to the transactions contemplated under this agreement, and all such taxes (including but not limited to net income or gross receipts taxes, franchise taxes, property taxes, and/or taxes arising from sales between a party and its subscribers or customers) shall be the financial responsibility of the party who is obligated by operation of law to pay such tax.
i. Change in HuskersToday.com Pricing. HUSKER SPORTS MEDIA may, from time to time, change applicable HuskersToday.com price(s), including but not limited to the minimum cost of Advertisements, but HUSKER SPORTS MEDIA will notify You before we do. Your continued use of HuskersToday.com following notice of any price change will constitute Your acceptance of such price change(s) and Your authorization for HUSKER SPORTS MEDIA to continue charging Your payment method for any prepaid amounts or any amounts incurred in connection with the HuskersToday.com Program. If You do not agree to such price changes, then You must revoke Your payment authorization and/or cancel Your HuskersToday.com Account or campaign within 30 days, subject to the terms of revocation and cancellation set forth in this agreement.
8. YOUR RESPONSIBILITY FOR ADVERTISEMENTS AND YOUR WEBSITE.
a. Keyword Responsibility. You are responsible for Your Content, Advertisements (including any associated Keywords that You select) and the content of any website linked to by Your Advertisements. Without limiting the generality of the foregoing, You acknowledge that HUSKER SPORTS MEDIA is not responsible for the content or maintenance of Your website(s), or websites owned or operated by any third party (including, without limitation, other advertisers), nor is HUSKER SPORTS MEDIA responsible for order entry, fulfillment, payment processing, shipping, cancellations, returns or customer service concerning orders placed on Your website(s) or websites owned or operated by any third party (including, without limitation, other advertisers).
b. Campaign Content. HUSKER SPORTS MEDIA may assist You with Your HuskersToday.com experience, including campaign optimization, selecting or suggesting Keywords, advertising copy, budget recommendations or other elements of an advertising campaign (collectively, the “Campaign Content”). You may provide HUSKER SPORTS MEDIA certain information about Your products or services, Keyword selections, anticipated budget and other information reasonably requested by HUSKER SPORTS MEDIA to assist You in advertising through HuskersToday.com (collectively, the “Advertiser-Provided Materials”). You may authorize HUSKER SPORTS MEDIA to access Your HuskersToday.com Account to place Your Advertisements on HuskersToday.com on Your behalf. If You authorize HUSKER SPORTS MEDIA to place Your Advertisements on Your behalf, then You are deemed to have approved all placements of Your Advertisements unless You provide to HUSKER SPORTS MEDIA evidence showing Your disapproval of such placements at the time of or prior to such placements. You grant HUSKER SPORTS MEDIA a royalty-free, non-exclusive, non-transferable license in perpetuity to use, reproduce and modify the Advertiser-Provided Materials and the Campaign Content for the purpose of providing services under this agreement to You and for the purposes of providing search results and related HUSKER SPORTS MEDIA services, including but not limited to display advertising. You are solely responsible for Your Campaign Content and the truthfulness, accuracy, completeness, lawfulness and appropriateness of the Campaign Content and Advertiser-Provided Materials. Without limiting the generality of the foregoing, You are solely responsible for determining whether any Keywords or advertising text contained in the Campaign Content violate any trademark or other rights of any third party. The decision to use any of the Campaign Content in a campaign within HuskersToday.com or on any other media outlet is solely Yours.
c. Representations and Warranties. You represent, covenant and warrant to HUSKER SPORTS MEDIA that: (i) the Content is accurate, complete and current, and You are fully authorized to publish the Content and authorize HUSKER SPORTS MEDIA to publish the Advertisements containing the Content throughout ; (ii) the Content, and any website linked to or from Your Advertisements in each case in market or jurisdiction selected by You for display of Your Advertisements (a) complies with all applicable laws and regulations, (b) does not infringe, misappropriate or otherwise violate any third party intellectual property right, (c) does not breach the rights of any person or entity, including, without limitation, rights of publicity or privacy, and is not defamatory, and (d) does not and will not result in consumer fraud (including being unfair, deceptive, false or misleading), product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (iii) or jurisdiction selected by You for display of Your Advertisements, the Keywords, when used in connection with Your Advertisements, do not infringe upon or otherwise violate the trademarks or other rights of any third party; (iv) You will not use, and will not authorize any third party to use, any automated means, including, without limitation, agents, robots, scripts or spiders, to access Your HuskersToday.com Account, to monitor the content contained therein, or bypass HUSKER SPORTS MEDIA tools or services to interfere or attempt to interfere with the proper working of HUSKER SPORTS MEDIA Network and will not generate automated or fraudulent impressions or clicks of advertisements on the Network; (v) You are a business, not a consumer; and (vi) You will not take any action that imposes an unreasonably or disproportionately large burden on HUSKER SPORTS MEDIA infrastructure, including HuskersToday.com, as determined by HUSKER SPORTS MEDIA at its sole discretion.
d. Indemnity. You will indemnify, defend and hold HUSKER SPORTS MEDIA and its Affiliates, agents and employees harmless from and against any and all loss, liability, and expense (including reasonable attorneys’ fees) suffered or incurred by reason of any claims, proceedings or suits related to or arising out of the Content, Your Advertisements, Your website, Advertiser-Provided Materials, Campaign Content, Your use of the API, or any breach by You of any representation or warranty under this agreement. HUSKER SPORTS MEDIA will have the right to participate in any defense under this Section 8(d) with counsel it selects, and You will not agree to any settlement that imposes any obligation or liability on HUSKER SPORTS MEDIA without the prior written consent of HUSKER SPORTS MEDIA.
8. CONFIDENTIALITY. Neither of us will disclose the other’s Confidential Information to third parties. Each of us will use the other’s Confidential Information only for purposes of this business relationship. Each of us agrees to take reasonable steps to protect the other’s Confidential Information. Each of us may disclose the other’s Confidential Information to our Affiliates, employees and contractors only, so long as the disclosing party remains responsible for any unauthorized use or disclosure. These disclosures may be made only on a need-to-know basis, subject to the obligations of this Section. Each of us may disclose the other’s Confidential Information if required to comply with a court order or other government demand that has the force of law. Before doing so, the receiving party must seek the highest level of protection available and, when possible, give the disclosing party enough prior notice to provide a reasonable chance to seek a protective order for its Confidential Information. The terms of this agreement are each of our Confidential Information. Neither of us may issue any press release relating to this agreement or the relationship established by this agreement without the express prior written consent of the other. If there is any breach or potential breach by either of us of our obligations under this Section, the injured party may seek injunctive and other equitable relief to enforce such obligations. “Confidential Information” means non-public information, know how or trade secrets in any form, that: (a) are designated as being confidential; or (b) a reasonable person knows or reasonably should understand to be confidential. The following types of information, however marked, are not Confidential Information. Information that: (i) is, or becomes, publicly available without a breach of this agreement; (ii) was lawfully known to the receiver of the information without an obligation to keep it confidential; (iii) is received from another source who can disclose it lawfully and without an obligation to keep it confidential; (iv) is independently developed; or (v) is a comment or suggestion one party volunteers about the other’s business, products or services.
10. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY. YOU EXPRESSLY AGREE THAT YOUR USE OF THE HUSKERSTODAY.COM PROGRAM, THE HUSKERSTODAY.COM SITE, THE API, AND ANY ASSOCIATED PRODUCTS OR SERVICES (INCLUDING THE SUPPLEMENTAL PROGRAMS SET FORTH IN SECTION 8(b) ABOVE) IS AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE HUSKERSTODAY.COM PROGRAM, THE HUSKERSTODAY.COM SITE, AND ANY ASSOCIATED PRODUCTS OR SERVICES AND ANY MATERIALS OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF HUSKER SPORTS MEDIA PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE”; AND ANY OTHER REPRESENTATIONS OR WARRANTIES RELATED TO THIS AGREEMENT (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND INCLUDING ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF PRODUCT LIABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, MERCHANTABILITY, AND WORKMANLIKE EFFORT) ARE EXCLUDED, INCLUDING REPRESENTATIONS AS TO THE QUALITY OF THE HUSKERSTODAY.COM PROGRAM, THE HUSKERSTODAY.COM SITE, THE API, OR ANY ASSOCIATED PRODUCTS OR SERVICES, THE EFFECT THE ADVERTISEMENTS MAY HAVE ON YOUR BUSINESS AND THE OPERABILITY OF ANY TOOLS USED BY ADVERTISER OR YOUR AGENCY TO ACCESS SUCH PARTY’S HUSKERSTODAY.COM ACCOUNT. HUSKER SPORTS MEDIA IS NOT LIABLE TO YOU FOR (AND YOU WILL NOT SEEK) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING DAMAGES FOR LOSS OF DATA OR PROFITS), FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THIS AGREEMENT REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE, EVEN IF YOU HAVE BEEN ADVISED THE DAMAGES ARE POSSIBLE. HUSKER SPORTS MEDIA WILL NOT BE LIABLE TO YOU FOR DAMAGES IN EXCESS OF AMOUNTS ACTUALLY PAID TO HUSKER SPORTS MEDIA HEREUNDER.
11. BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOUR PRINCIPAL PLACE OF BUSINESS IS IN THE UNITED STATES. This section applies to any dispute EXCEPT DISPUTES RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, HUSKER SPORTS MEDIA’S, OR EITHER OF OUR LICENSORS’ INTELLECTUAL PROPERTY RIGHTS. The term “dispute” means any dispute, action, or other controversy between You and HUSKER SPORTS MEDIA concerning the HuskersToday.com Program or services (including their price), the HuskersToday.com Site, the API, or this agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
a. Notice of Dispute. In the event of a dispute, You or HUSKER SPORTS MEDIA must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to HUSKER SPORTS MEDIA LLC, PO BOX 6171 OMAHA, NE 68106. HUSKER SPORTS MEDIA will send any Notice of Dispute to You by U.S. Mail to your address if we have it, or otherwise to Your email address. You and HUSKER SPORTS MEDIA will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, You or HUSKER SPORTS MEDIA may commence arbitration.
b. Small Claims Court. You may also litigate any dispute in small claims court in the county of Your principal place of business or Douglas County, Nebraska, if the dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not You negotiated informally first.
c. Binding Arbitration. If You and HUSKER SPORTS MEDIA do not resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by individual binding arbitration governed by the Federal Arbitration Act (“FAA”). Class arbitrations are not permitted. You are giving up the right to litigate disputes in court before a judge or jury (or participate in court as a party or class member). Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
d. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither You nor HUSKER SPORTS MEDIA will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
e. Arbitration Procedure. Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. If you are an individual and use the services for personal or household use, or if the value of the dispute is $75,000 or less whether or not You are an individual or how You use the services, its Supplementary Procedures for Consumer-Related Disputes will also apply.
- Arbitration Procedure, Costs, Fees, and Payments.
i. Disputes Involving $75,000 or Less. HUSKER SPORTS MEDIA will promptly reimburse Your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If You reject HUSKER SPORTS MEDIA’s last written settlement offer made before the arbitrator was appointed (“HUSKER SPORTS MEDIA’s last written offer”), Your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards You more than HUSKER SPORTS MEDIA’s last written offer, HUSKER SPORTS MEDIA will: (i) pay You the greater of the award or $1,000; (ii) pay twice Your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that Your attorney reasonably accrues for investigating, preparing, and pursuing Your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless You and HUSKER SPORTS MEDIA agree on them.
ii. Disputes Involving More Than $75,000. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
iii. Disputes Involving Any Amount. In any arbitration You commence, HUSKER SPORTS MEDIA will seek its AAA or arbitrator’s fees and expenses, or Your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration HUSKER SPORTS MEDIA commences, HUSKER SPORTS MEDIA will pay all filing, AAA, and arbitrator’s fees and expenses. HUSKER SPORTS MEDIA will not seek its attorney’s fees or expenses from You in any arbitration. Fees and expenses are not counted in determining how much a dispute involves.
g. Conflict with AAA Rules. This agreement governs to the extent it conflicts with the AAA’s Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes.
h. Claims or Disputes Must Be Filed Within One Year. To the extent permitted by law, any claim or dispute under this agreement must be filed within one year in small claims court (Section 11.b), in an arbitration proceeding (Section 11.c), or in court if Section 11 permits the dispute to be filed in court instead of arbitration. The one-year period begins when the claim or Notice of Dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred.
i. Rejecting Future Arbitration Changes. You may reject any change HUSKER SPORTS MEDIA makes to Section 11 (other than address changes) by sending us notice within 30 days of the change by U.S. Mail to the address in Section 11.a. If you do, the most recent version of Section 11 before the change You rejected will apply.
j. Severability. If the class action waiver in Section 11.d is found to be illegal or unenforceable as to all or some parts of a dispute, then Section 11 will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of Section 11 is found to be illegal or unenforceable, that provision will be severed with the remainder of Section 11 remaining in full force and effect.
k. Third-Party Beneficiaries. Affiliates of HUSKER SPORTS MEDIA are not parties to this agreement but are third-party beneficiaries of Your and HUSKER SPORTS MEDIA’s agreement to resolve disputes through informal negotiation and arbitration. In certain countries other than the United States, Affiliates of HUSKER SPORTS MEDIA will also have powers to issue invoices under this agreement and collect payments from You, including, without limitation, in court procedures. If Your dispute is with an Affiliate of HUSKER SPORTS MEDIA, such Affiliate agrees to do everything HUSKER SPORTS MEDIA agrees to do in Section 11, and You agree to do everything regarding the Affiliate that Section 11 requires You to do regarding HUSKER SPORTS MEDIA. For purposes of Section 11.k, “Affiliate” means any legal entity that a party owns, that owns a party, or that is under its common ownership. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.
12. TERMINATION. If You are dissatisfied with any aspect of the HuskersToday.com Program, Your sole and exclusive remedy is to cease participating in the HuskersToday.com Program and terminate this agreement upon written notice to HUSKER SPORTS MEDIA. You or HUSKER SPORTS MEDIA may terminate this agreement and Your participation in any HuskersToday.com Program (including Your API access and API Credentials), at any time, for any reason or for no reason. Notwithstanding anything contained in this agreement to the contrary, HUSKER SPORTS MEDIA may, at its sole discretion, terminate or suspend Your account, and/or discontinue or suspend Your participation in all or part of any HuskersToday.com Program. Reasons for a HUSKER SPORTS MEDIA determination to terminate, suspend or discontinue Your account or participation may include, without limitation, HUSKER SPORTS MEDIA’s determination that You have violated this agreement or HUSKER SPORTS MEDIA’s other rules or guidelines applicable to the HuskersToday.com Program, HUSKER SPORTS MEDIA’s belief that Your conduct may be harmful to users or other advertisers, or HUSKER SPORTS MEDIA’s determination at its discretion that Your conduct is unlawful or likely to create legal liability for HUSKER SPORTS MEDIA. All such decisions made by HUSKER SPORTS MEDIA will be final and HUSKER SPORTS MEDIA will have no liability regarding such decisions. Upon termination, suspension or discontinuation of any HuskersToday.com Program or Your participation therein: (a) all outstanding payment obligations incurred under such HuskersToday.com Program will become immediately due and payable; (b) any amounts remaining in Your prepaid account balance will be refunded, subject to application of such funds to any outstanding amounts due by You; and (c) if You are not managing account termination online through HuskersToday.com Site, You will be responsible for all fees incurred through the date HUSKER SPORTS MEDIA receives Your termination notice plus one (1) business day thereafter. The terms of this agreement requiring performance (or applying to events that may occur) after termination will survive termination, including those related to indemnity, limitation of liability, confidentiality, class action waiver, and arbitration.
13. NOTICES. This agreement is in electronic form. We have promised to send You certain information in connection with the HuskersToday.com Program and have the right to send You certain additional information. There may be other information regarding the HuskersToday.com Program that the law requires HUSKER SPORTS MEDIA to send You. HUSKER SPORTS MEDIA may send You this information in electronic form. You have the right to withdraw this consent, but if You do, HUSKER SPORTS MEDIA may cancel your HuskersToday.com account. HUSKER SPORTS MEDIA may provide required information to You:
• by e-mail at the e-mail address You specified when You signed up for Your HuskersToday.com Account;
• by access to the HuskersToday.com Site that will be designated in an e-mail notice sent to You at the time the information is available; or
• by access to the HuskersToday.com Site that will be generally designated in advance for this purpose.
Notices provided to You via e-mail will be deemed given and received on the transmission date of the e-mail. As long as You can access and use the HuskersToday.com Program, You acknowledge that You have the necessary software and hardware to receive and retain these notices. If You do not consent to receive any notices electronically, You must stop using the HuskersToday.com Program.
All notices to HUSKER SPORTS MEDIA will be sent via recognized overnight courier or certified mail, return receipt requested, to the HUSKER SPORTS MEDIA address listed above.
14. GOVERNING LAW. The laws of the state or country where Your principal place of business is located govern all claims and disputes concerning this agreement, including breach of contract claims and claims under state consumer protection laws, unfair competition laws, implied warranty laws, for unjust enrichment, and in tort, except that the FAA governs all provisions relating to arbitration. If federal jurisdiction exists, HUSKER SPORTS MEDIA, Your agency (if applicable), and You consent to exclusive jurisdiction and venue in the federal courts in Douglas County, Nebraska for all disputes arising from or related to this agreement that are heard in court (not arbitration and not small claims court).
- INTERPRETATION. Except as provided in Section 11.j, if an arbitrator or court of competent jurisdiction finds any term of this agreement unenforceable, the agreement will be deemed modified as necessary to make it enforceable, and the rest of the agreement will be fully enforced to effect the parties’ intent. Lists of examples following “including”, “e.g.,” or “for example” are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” This agreement will be interpreted according to its plain meaning without presuming that it should favor either party. Unless stated or context requires otherwise: (1) all internal references are to this agreement and its parties; (2) all monetary amounts are expressed and, if applicable, payable, in U.S. dollars; (3) URLs are understood to also refer to successor URLs, URLs for localized content, and information or resources linked from within the websites at the specified URLs; and (4) a party’s choices under this agreement are in its sole discretion.
16. FORCE MAJEURE. Neither of us will be liable for failure to perform any obligation under this agreement to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond our reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use its commercially reasonable efforts to resume performance. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
17. ASSIGNMENT AND ACCOUNT TRANSFER. Neither of us may assign this agreement, or any rights or duties under it, except with the other party’s express, prior, written consent. Notwithstanding the foregoing, HUSKER SPORTS MEDIA may assign this agreement to any of its Affiliates or to a third party in the ordinary course of business. HUSKER SPORTS MEDIA may transfer Your HuskersToday.com Account to a third party, regardless of whether HUSKER SPORTS MEDIA assigns this agreement to such third party and you may be required to sign a new agreement with such third party. Any attempted assignment in violation of this Section 17 is a material breach of this agreement and is null and void. Subject to the prior sentences, this agreement will bind and benefit the parties’ successors and permitted assigns.
18. MISCELLANEOUS. Each of us is an independent contractor to the other and has no authority to act on behalf of or bind the other, and this agreement does not create any other relationship (e.g., employment, partnership, or agency). All rights and remedies under this agreement are cumulative. Each of us will pay our own costs to perform (except if expressly stated otherwise). When performing this agreement (including with regard to sharing any user data with the other party), each of us will comply with all applicable laws, rules, and regulations. Only written waivers are effective. This agreement is the parties’ entire agreement on this subject and merges and supersedes all related oral understandings, representations, prior discussions, letters of intent, or preliminary agreements. If an arbitrator or any court of competent jurisdiction determines that any provision of this agreement is illegal or unenforceable, the remaining provisions will remain in full force and effect. Section 11.j says what happens if parts of Section 11 (arbitration and class action waiver) are found to be illegal or unenforceable. Section 11.j prevails over this section if inconsistent with it.
19. HUSKERSTODAY.COM – CONTENT, SERVICES AND AUTHORIZATION (applies to HuskersToday.com customers only).
a. Your Content. In order for HUSKER SPORTS MEDIA to provide the HuskersToday.com Program to You, You must provide the following information to HUSKER SPORTS MEDIA: (i) Your business category (e.g., Italian restaurant, seafood restaurant); (ii) Your business address; (iii) information about the target geography of Your customers (e.g., within 20 miles from Your business address); and (iv) Your content (e.g., text and URLs for the Advertisements) (i-iv, collectively, “Content”). HUSKER SPORTS MEDIA will then provide budget options for You to select from (and may offer You the ability to create a custom budget), and ask You to create Your Advertisement. If You wish, You may also request that HUSKER SPORTS MEDIA creates an Advertisement for Your business based on the Content that You provide. You will not have the ability to approve any HUSKER SPORTS MEDIA-created Advertisement before it goes live, but HUSKER SPORTS MEDIA will make each Advertisement that HUSKER SPORTS MEDIA creates available to You in Your HuskersToday.com dashboard. You must review each Advertisement that You have requested HUSKER SPORTS MEDIA to create, and You are responsible for determining that Advertisement’s truthfulness, accuracy, completeness, lawfulness and appropriateness. If HUSKER SPORTS MEDIA creates an Advertisement on Your request, and You feel that the Advertisement is not truthful, accurate, complete, lawful or appropriate, You must promptly pause the business category for that Advertisement. HUSKER SPORTS MEDIA will also select Keywords for Your business. If You selected one of the three standard budget options, HUSKER SPORTS MEDIA will use commercially reasonable efforts to optimize the Advertisement campaign to deliver the estimated number of Clicks You selected as part of that standard budget.
b. HUSKER SPORTS MEDIA Services and Your Authorization. HUSKER SPORTS MEDIA will assist You with Your HuskersToday.com experience by selecting the Keywords for Your Advertisements, providing budget options, and upon Your request creating Advertisements using Your Content. In addition to the Content, You may provide HUSKER SPORTS MEDIA with other information reasonably requested by HUSKER SPORTS MEDIA to assist You in advertising through HUSKER SPORTS MEDIA HuskersToday.com (the “Advertiser-Provided Materials”). You hereby authorize HUSKER SPORTS MEDIA to access Your HuskersToday.com account to place Your Advertisements on HUSKER SPORTS MEDIA HuskersToday.com on Your behalf. You hereby grant HUSKER SPORTS MEDIA a royalty-free, non-exclusive, non-transferable license in perpetuity to use, reproduce and modify the Advertiser-Provided Materials and the Content for the purpose of providing these services to You. Without limiting the generality of the foregoing, You are solely responsible for determining whether Your Advertisements (whether created by You or by HUSKER SPORTS MEDIA on Your behalf) violate any trademark or other rights of any third party. The decision to provide the Content to HUSKER SPORTS MEDIA for use in a campaign within HUSKER SPORTS MEDIA HuskersToday.com or on any other media outlet is solely Yours.