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Draft 3.25.11

ONLINE ADVERTISING SERVICE AGREEMENT

Online Advertising Service Agreement (“Agreement”) entered into by and between Barhopchicago, LLC, a limited liability company organized under the law of the State of Illinois, whose principal office is located at 517 Sycamore Lane, Wheeling, Illinois 60093 (“BHC”) and you, the customer or the organization you are authorized to represent (“Customer”):

Recitals

Whereas BHC owns and operates a website (“Site”) which provides graphic and text based content and advertising relating to and describing bars, taverns, pubs and restaurants in the Chicago metropolitan area and surrounding counties; and

Whereas Customer desires to advertise its business on the Site in accordance with the terms and conditions of this Agreement.

 

Now, therefore, the parties agree as follows:

 

Agreement

1.   Access to Site.  BHC agrees to include on the Site certain advertising content as provided by Customer.  It is contemplated by the parties that this content will include text, graphics and a link to the individual website of Customer (“hereinafter referred to as “Advertising Content”).  It is further contemplated by the parties that the Advertising Content will include specials relating to Customer’s business, notice of upcoming events, menus, maps and directions, contact information, and other related information.

2.   Submission of Advertising Content for Approval.  Customer agrees to submit its Advertising Content to BHC one week prior to the initial inclusion on the Site.  Thereafter, the parties agree that Customer may change its Advertising Content at its discretion, provided that frequent changes are not likely to create confusion or mislead  users of the Site.  It is contemplated by the parties that Customer will be able to change its Advertising Content electronically by access to the Site.

3.  BHC Approval of Advertising Content.   Any other provision of this Agreement to the contrary notwithstanding, BHC, in its absolute discretion, has the right and option to approve the Advertising Content that Customer submits to BHC. If BHC finds that the Advertising Content is objectionable in any way, or that it contains false or misleading information, illegal information, or vulgar or pornographic items, BHC, in its sole discretion, may reject the Advertising Content and refuse to include it on the Site. If  BHC rejects any Advertising Content, BHC will so notify the Customer.  BHC, by placing Advertising Content on the Site, does not waive the right to object to such content in the future or to any changes or additions thereto.
4.  Termination Due to Content.  BHC has the right to terminate this Agreement if BHC  fails to approve or refuses to include on the Site any Advertising Content submitted by Customer.  In such event, any prepaid advertising fees shall be returned to Customer.  Customer will not be entitled to any damages or other remedies, in law or in equity, against BHC for removing or failing to include Advertising Content on the Site (except for the return of any unused prepaid advertising fees).
5.  Customer Fees.   In consideration for the advertising services provided by BHC, Customer agrees to pay the advertising fees set forth on the fee schedule attached hereto as Exhibit A. The Customer will also pay any sales and other taxes based upon the fees set forth therein. Advertising fees will be paid monthly, in advance, on or before the first day of every month during the term hereof.  BHC will charge interest and service charges on monthly accounts that are delinquent at the maximum rates allowable by law. Customer will be responsible for all costs and attorney fees if it is necessary to pursue collection efforts with respect to Customer’s account. BHC reserves the right to suspend advertising services until Customer’s account is brought current or BHC may terminate this Agreement if an account is delinquent more than 30 days.  Termination by BHC does not waive its right to collect all fees due it from Customer.

6.  Scope of Service by BHC.    BHC will use its reasonable efforts to make its Site available for display through the internet.  BHC is not responsible for periodic downtime for maintenance, backup, acts of God, unforeseeable interruptions and other circumstances beyond its control or which are a normal part of the internet business. BHC will not place links to Customer's website or website content in newsgroups, message boards, unsolicited email and other types of spam, chat rooms, guest books, or through similar internet resources. BHC does not guarantee any given amount of impressions to Customer’s website as a result of BHC’s advertising services.
7.  BHC Sole Control of Site.   BHC has sole and complete discretion with respect to all decisions and matters concerning placement of Customer’s Advertising Content on the Site, software solutions, hardware configurations and selection, system components, categories of advertising, search engine results and search parameters and other operational and administrative matters pertaining to the construction and operation of the  Site.

8.  Proprietary Rights and Licenses.   BHC will retain all proprietary rights in and to the  Site and other proprietary materials such as copyrights, trademarks, trade secrets, patents and confidential information related thereto. BHC does not grant any rights in and to such proprietary material.  Customer hereby grants to BHC a non-exclusive license to use the Advertising Content provided, including its trademarks and copyrights, and the right to hyperlink to Customer’s site from BHC’s Site during the term of this Agreement. Upon termination of this Agreement, BHC agrees to remove from the Site within a reasonable time the hyperlink and Customer’s Advertising Content.
9.  Customer Representations and Warranties.   Customer represents and warrants that the Advertising Content provided by it to BHC (i) shall not be false and misleading, (ii) shall not contain any untrue, defamatory, harmful, abusive, vulgar or obscene materials,  (iii) shall be in compliance with all applicable laws, (iv) shall not  infringe upon the rights of BHC or any other third party, including but not limited to copyrights, trademarks, privacy rights, moral rights, trade secrets, patents and any other rights, and (v) that Customer shall have the unrestricted, exclusive and lawful right to use all such materials.
10.  DISCLAIMERS BY BHC. BHC SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED, TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ON THE RIGHTS OF THIRD PARTIES. IN NO EVENT SHALL  BHC BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SALES OR PROFIT, LOST CLIENTS, BRAND DETERIORATION, LOST DATA, BUSINESS INTERRUPTION OR ATTORNEYS' FEES), EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY.  BHC MAKES NO WARRANTIES THAT THE ADVERTISING CONTAINED ON THE SITE SHALL BE FREE FROM ERRORS OR DEFECTS OR THAT THE USE OF THE HYPERLINK OR ACCESS TO THE SITE SHALL BE UNINTERRUPTED.
11.  Indemnification by Customer.  Customer hereby agrees to indemnify and hold BHC harmless from and against any claims, suits, threats, demands, settlements, actions, causes of action, liabilities, obligations and all other matters, including but not limited to court costs, attorney fees, witness fees, settlement fees, and all other direct and indirect expenses and losses that may occur arising from the breach of any of the representations and warranties that Customer has made herein to BHC or otherwise arising directly or indirectly from the placement of Customer’s Advertising Content on the Site.
12.  Force Majeure.  BHC shall not be responsible for any failure or delay in performance hereunder that is directly or indirectly related to acts of God, storm, natural disaster, act of terrorism, utility outages or interruptions, system transmission failure, server failure, strike, lockout, or any other situation which is beyond its control.
13. Termination.  Either party may terminate this Agreement, with or without cause, upon the giving of 30 days notice to the other party.
14.  Assignment.  Customer shall not be entitled to assign its rights or responsibilities under this Agreement.

15.  Attorney Fees and Costs.  If any dispute or lawsuit arises between the parties, the prevailing party shall be entitled to reimbursement from the other for reasonable attorney fees and other costs.
16.  Entire Agreement. This Agreement and the Exhibits hereto constitute the entire agreement and understanding between the parties with respect to the subject matter hereof. It supercedes and replaces all previous discussions, negotiations, and understandings between the parties. This Agreement may only be amended by a written amendment signed by the authorized representative of the respective parties.

17.  Notices.  All legal notices called for herein shall be to the parties at the addresses contained in this Agreement and shall be by certified mail, return receipt requested, or by a reputable national overnight delivery service, such as Federal Express, or by personal hand delivery.
18. Governing Law. This Agreement has been made and executed in the State of Illinois and shall be interpreted under the laws thereof. Any and all legal actions arising out of this Agreement shall be brought in the appropriate forum in Illinois.

The parties hereto have executed this Agreement on the day and date first above written by accepting the terms of this agreement by clicking that you accept and creating a user account on this website.