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EXHIBIT 10.31
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Advertising Insertion Order
HTTP:WWW.EGROUPS.COM
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Sales Contact: ______________ e-mail: ___________ Phone: (415) 546-2793 Fax: (415) 546-2801
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ORDER INFORMATION
Order Date: ____________________ Order #: ______________
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ADVERTISER AGENCY
FAX FAX
ADDRESS ADDRESS
CONTACT CONTACT
PHONE PHONE
EMAIL EMAIL
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START DATE END DATE CONTRACT LENGTH
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Bill To: __ Advertiser __ Agency
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AD PLACEMENT
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Ad Type Position Target Total Insertions Total Amount
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COST:
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DELIVERY: All materials must be delivered at least 4 business days in advance to
the e-mail address below ____________________. In all correspondence, an eGroups
insertion order number and flight dates must be referenced.
Insertion orders are subject to the approval of eGroups, Inc., which retains
sole discretion to accept or reject any order. Once accepted, the Insertion
Order may not be cancelled by Advertiser. Acceptance does not obligate eGroups
to accept subsequent orders. This insertion order is subject to and incorporates
eGroups Standard Terms and Conditions for Advertisers which are attached hereto.
AUTHORIZED BY: ______________________________________
PHONE: ______________ DATE: _________
PRODUCTION CONTACT: __________________________________
PHONE: ______________ DATE: _________
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PLEASE RETURN TO EGROUPS SALES DEPT. FAX # (415) 546-2801
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ACCEPTED AND AGREED TO:
ACCEPTED AND AGREED TO:
EGROUPS, INC.
BY:
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NAME:
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DATE:
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EGROUPS, INC.
STANDARD TERMS AND CONDITIONS FOR ADVERTISERS
THE FOLLOWING TERMS AND CONDITIONS ("STANDARD TERMS AND CONDITIONS FOR
ADVERTISERS") ARE DEEMED TO BE INCORPORATED INTO EACH ADVERTISING INSERTION
ORDER ACCEPTED BY EGROUPS ("INSERTION ORDER"):
1. TERMS OF PAYMENT. The Advertiser (as defined in the Insertion Order) will be
invoiced on the first day of the contract period set out in the Insertion Order.
Unless otherwise expressly agreed by the parties in writing, the Advertiser must
ensure that payment is made to eGroups, Inc. ("eGroups") in U.S. dollars within
thirty days after the date of the invoice, subject to credit policies that may
be in effect with respect to an individual Advertiser. Advertising agencies are
responsible for payment of all advertising ordered on behalf of their clients,
and by signing an Insertion Order acknowledge that they are jointly and
severally liable with their clients for payment. Advertiser's default in payment
entitles eGroups to cancel any advertising run remaining under the Insertion
Order.
2. CREATION, DELIVERY AND RUNNING OF ADVERTISING MATERIALS. Advertiser is solely
responsible for the creation of all advertising materials (including GIF or JPEG
files), and for the content of such advertising including compliance with all
applicable international, federal, state, or local laws and regulations that may
apply to the subject advertising. Advertiser will deliver the materials to
eGroups in electronic form at least four (4) business days before the scheduled
run date, or as otherwise instructed. Advertiser hereby grants eGroups a
non-exclusive, worldwide, fully paid right and license to use, reproduce,
publish, publicly perform and publicly display all such materials on the eGroups
Site. Advertiser acknowledges that positioning of advertisements on the eGroups
Site will be determined by eGroups in its sole discretion. eGroups does not
warrant the date or dates of insertion of the advertisement(s) and does not
warrant that the advertisement(s) will not be displayed after the end date
specified. However, eGroups will use reasonable efforts to comply with
Advertiser's request in this regard.
3. RIGHT TO REJECT ADVERTISEMENTS. All contents of advertisements are subject to
eGroups' approval. eGroups does not undertake to review the content of any
advertisement and any such review or approval shall not be deemed to constitute
an acceptance by eGroups that such advertisement is provided in accordance with
these Standard Terms and Conditions for Advertisers nor will it constitute a
waiver of eGroups' rights hereunder. eGroups reserves the right, in its sole
discretion, to reject or remove any advertisement, insertion order, URL link,
space reservation or position commitment at any time in its absolute discretion.
4. RATES. eGroups reserves the right to revise its advertising rate card at any
time. Rate card changes will not apply to Insertion Orders already signed by
eGroups.
5. USAGE STATISTICS. Notwithstanding the provisions of the Insertion Order, the
Advertiser acknowledges that eGroups makes no guarantees with respect to the
usage statistics or levels of impressions for any advertisement. eGroups
provides the Advertiser with estimated usage statistics as a courtesy to
Advertiser and eGroups will not be held liable for any claims relating to any
usage statistics however supplied.
6. ADVERTISER'S REPRESENTATIONS AND WARRANTIES. Advertiser represents and
warrants to eGroups that 1) it has the right to publish all of the content of
the advertisements provided under the Insertion Order and that such publication
will not infringe the rights of any third party, including without limitation,
intellectual property rights and rights of privacy or violate any applicable law
or regulation; and 2) the advertisements do not contain anything that is
defamatory, obscene, false or
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misleading.
7. INDEMNITY. Advertiser agrees to indemnify, defend and hold harmless eGroups,
and its employees, representatives and agents, from and against any and all
losses, damages, suits, judgments, costs and expenses, including reasonable
attorney's fees, arising out of or in connection with any claims, suits,
actions, or other proceedings actual or threatened based on or arising from: (a)
advertisements or other content supplied by Advertiser, including any claim that
it infringes any copyright, trademark or other intellectual property right of a
third party or contains any material that is obscene, defamatory, violates any
law or regulation, or breaches the rights of any person or entity, including,
without limitation, rights of publicity, privacy or personality, or is otherwise
actionable; (b) Advertiser's products or services, including any claim that they
are illegal or harm or may harm a third party in any manner; (c) a breach by
Advertiser of any representation or warranty contained in Paragraph 6; or (d)
the development, operation, maintenance or content contained on Advertiser's web
site.
8. LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES
PROVIDED BY EGROUPS HEREUNDER ("ADVERTISING SERVICES") ARE PROVIDED "AS IS" AND
"AS AVAILABLE." EGROUPS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, REGARDING THE ADVERTISING SERVICES AND THE EGROUPS SITE OR ANY OTHER
ITEMS OR SERVICES IT MAY PROVIDE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE
OF PERFORMANCE OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, EGROUPS DOES NOT WARRANT THAT ITS SITE WILL BE FREE FROM BUGS,
DEFECTS OR ERRORS, OR THAT IT WILL BE ACCESSIBLE WITHOUT INTERRUPTION. IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, OR COSTS, SUFFERED BY THE OTHER, INCLUDING BUT NOT
LIMITED TO, ANY LOST PROFITS OR REVENUES, LOSS OF USE OR GOODWILL, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. LIMITATION OF DAMAGES. If eGroups fails to publish any advertisement or
deliver the number of impressions as provided in the Insertion Order (or in the
event of any other failure, technical or otherwise, of such advertisement to
appear as provided in the Insertion Order), eGroups' liability will be limited
(at the option of eGroups) to either: (a) publishing the advertisement (or a
replacement advertisement if provided by the Advertiser) as soon as is
reasonably practicable in the period following the period during which the
advertisement was scheduled to run and for such time as is necessary to generate
a number of substitute impressions equal to the shortfall, or (b) refund to the
Advertiser that proportion of the amounts paid which relate to those
advertisements and/or impressions which were not provided, or, if the relevant
amounts were not paid by the Advertiser, agree that such amounts will not be due
or payable.
10. GENERAL. (a) These Standard Terms and Conditions for Advertisers together
with the Insertion Order ("Agreement"), constitute the entire agreement between
the parties and supersede any prior agreements and representations between the
parties, whether written or oral, regarding the subject matter contained herein;
(b) Advertiser may not assign, resell or otherwise transfer, any rights or
obligations under these Standard Terms and Conditions for Advertisers or the
Insertion Order, without the prior written consent of eGroups; (c) this
agreement shall be construed and interpreted according to the laws of the State
of California without regard to choice of law principles, and all disputes
arising under these terms shall be heard exclusively in the state courts of
California in the county of San Francisco or in the federal courts of the
Northern District of California, to which the parties consent to jurisdiction
and venue; (d) the prevailing party in any action or proceeding arising under
the Agreement shall be entitled to reasonable attorney's fees and costs; (e) the
waiver of a breach or right under the
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Agreement shall not constitute a waiver of any other or subsequent breach or
right; (f) if any provision of the Agreement is found to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
severed from the remainder of the Agreement, which shall remain in full force
and effect; (g) eGroups shall not be in default or otherwise liable for any
delay in or failure of its performance under the Agreement arising by reason of
any Act of God, disruptions of the Internet, telecommunications facilities or
public utilities, or any government or any governmental body, acts of war, the
elements, strikes or labor disputes, or other causes beyond its control; and (h)
Advertiser shall keep the terms of the Insertion Order confidential.