Terms & Conditions | Visit Santa Ynez Valley Members

Thank you for your Membership purchase with Visit the Santa Ynez Valley (referred herein as “VisitSYV”). You (“Member”) have agreed to purchase a Membership with VisitSYV (referred herein as the “Agreement”), and as part of your Membership you are hereby authorized to use the features of VisitSYV’s online platform (referred herein as the “Platform”) which is located at the URL www.VisitSYV.com and operated by Day After Day Marketing, Inc. dba FirstStreet Creative (referred herein as “DADM”).

Membership Purchase, Terms and Auto-Renewal

VisitSYV Membership sales are final, non-refundable, and non-transferable. The Membership term is one (1) year and Membership begins on the date of purchase. An Automatic Renewal within a current Membership term extends the existing expiration date of the Membership by one (1) year and such renewal term begins the day after the current term ends. When an expired Membership is renewed, the new Membership term is one (1) year, beginning on the date of renewal.

The term of a Membership shall commence on the date it is purchased and continue one (1) year at which point the Membership will be billed for Automatic Renewal. Each Membership will automatically renew (referred herein as “Automatic Renewal Membership”) each year for additional one (1) year periods that commence on the day after the previous term ends unless you notify VisitSYV of your decision to opt out of Automatic Renewal Membership within 30-days prior to your membership renewal (i) via email: danielle@visitsyv.com; (ii) via mail, PO Box 633, Solvang, CA 93464 ; or (iii) if your Membership is terminated due to lack of payment within 28-days of membership renewal or purchase.

Automatic Renewal Membership fees will be billed annually via an emailed reminder that serves as an invoice to the Member’s main contact. Should the Member’s contact information change, it is the Member’s responsibility to update their contact information with VisitSYV. Membership renewal and/or Membership Purchase invoices must be paid within 28-days of the renewal and/or purchase date or the membership will be cancelled and all Membership benefits will be revoked.

Member Profile Pages

VisitSYV reserves the right to exercise discretion regarding the content accepted for the Platform. Therefore, VisitSYV may not accept content related to certain products and services such as, but not limited to, mature sexual themes, nudity and/or sexual activity, crude or indecent language that may be offensive or inappropriate. VisitSYV reserves the right to withhold, withdraw or refuse to display any Member content for any reason whatsoever, either before publication or after publication.

Member is solely responsible for any liability arising out of or relating any content Member uploads to Platform. Member represents and warrants that any information found on their Member Profile Page or on URLs hyperlinked from the same will not violate any criminal laws or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, image, or other proprietary or confidential information or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity.

Member agrees to indemnify VisitSYV and to hold VisitSYV and its officers, directors, employees and agents harmless from any and all liability, loss, cost, damages, claims or cause of action of any kind, including reasonable legal fees and expenses that may be incurred by VisitSYV, arising out of or related to Member’s breach of any of the foregoing representations and warranties.

Member agrees to indemnify DADM and to hold DADM and its officers, directors, employees and agents harmless from any and all liability, loss, cost, damages, claims or cause of action of any kind, including reasonable legal fees and expenses that may be incurred by DADM, arising out of or related to Member’s breach of any of the foregoing representations and warranties.

Service Interruptions

Member agrees not to hold VisitSYV or DADM responsible for any liability, loss, cost, claim, damage or causes of action of any kind that it may suffer as a result of the transactions contemplated hereby, including but not limited to loss resulting from service delays and incomplete or interrupted service, regardless of cause or fault. If for any reason VisitSYV or the Platform containing Member’s content ceases to operate, then the Member shall have no right of action regarding the cessation of operation of the website containing the content and the Member shall not be released from any liability of right of action which at the time of cessation has already accrued to VisitSYV.

Indemnification

Member shall indemnify, defend and hold harmless VisitSYV, its parents and affiliates, and each of their respective officers, directors, employees and agents, for all claims, liabilities and costs, including reasonable attorneys’ fees, of defending any claim or suit arising out of the authorized use of the materials provided to VisitSYV by Member pursuant to this Agreement.

Member shall indemnify, defend and hold harmless DADM, its parents and affiliates, and each of their respective officers, directors, employees and agents, for all claims, liabilities and costs, including reasonable attorneys’ fees, of defending any claim or suit arising out of the authorized use of the materials provided to VisitSYV by Member pursuant to this Agreement.

Termination of Membership

VisitSYV reserves the right to terminate this Agreement or any applicable Statement of Work in the event of a material breach by Member if such breach continues uncured for a period of thirty (30) business days after receipt of such written notice. The foregoing rights to terminate are in addition to, not in lieu of, all other rights and remedies which may be available to VisitSYV under this Agreement, at law and/or in equity.

Upon termination or expiration of this Agreement the rights granted to Member by VisitSYV by under this Agreement or the particular Statement of Work will cease immediately upon the effective date of such termination or expiration and be of no further force or effect. VisitSYV shall immediately cease all use of any Member materials and Work Product and shall return or destroy (at the request of Member) all such materials and/or Work Product, subject to Member’s payment obligations herein. If Member terminates this Agreement for any reason other than a material breach, Member shall be obligated to pay VisitSYV upon such termination any and all undisputed accrued and unpaid amounts and expenses due and payable to VisitSYV as of the date of termination. If VisitSYV terminates this Agreement, Member shall be obligated to pay VisitSYV upon such termination any and all undisputed accrued and unpaid amounts and expenses due and payable to VisitSYV as of the date of termination.

Miscellaneous

Entire Agreement. This Agreement sets forth the entire Agreement and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision by signed agreement.

Amendment. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by the party subject to enforcement of such amendment.

Waiver. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.

Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.

Governing Law. This Agreement, and any and all disputes arising from or relating to this Agreement, will be governed by and construed under the laws of the State of California, without reference to its conflicts of law principles. All disputes relating to this Agreement shall be brought solely in the state and federal courts located in Santa Barbara County, California. Each of the parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in Santa Barbara County, California for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts.

Headings. The captions and headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. This Agreement may be executed by facsimile signature (or similar technology).

Relationship of the Parties. Each party is an independent contractor of the other party and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

Delay of Obligations. VisitSYV and DADM will not be liable nor deemed to be liable to the Member for failure or delay in meeting any obligation due to strikes and/or lockouts (whether of their own employees or those of others), Acts of God, war, fire, flood, embargo, litigation, acts of government or any agency instrumentality or any political subdivision thereof, technical difficulties or any other cause beyond the control of VisitSYV or DADM. In any such event, and if possible, the time for performance of the obligations under this Agreement will be extended by the same period or periods (as the case may be) for the obligation is delayed.

VisitSYV – Website Advertising Agreement (If Applicable)

This letter confirms the confidential agreement (hereinafter to be referred to as “Agreement”) between Member (hereinafter to be referred to as “Advertiser”) and The Santa Ynez Valley Hotel Association, Inc. dba VisitSYV (hereinafter to be referred to as “VSYV”) with respect to Advertiser’s agreement to purchase a Banner Advertisement (the “Ad”) upon the following terms and conditions on the www.VisitSYV.com website platform (hereinafter referred to as “Website”) located on the World Wide Web and operated by Day After Day Marketing, Inc. dba FirstStreet Creative (hereinafter to be referred to as “DADM”).

(1) Term / Non-Exclusivity

The Agreement shall commence on the date Member purchases Ad from VSYV (the “Purchase Date”). The Ad will run continuously for three (3) or six (6) months as specified at time of purchase (the “Initial Term” or “Term”) and begin running on the 1^st day of the next month after the Purchase Date (the “Start Date”). No Ads will go active on the Website until payment is received in full by VSYV. Throughout the Term, VSYV will provide services to Advertiser on a non-exclusive basis.

(2) Definition

During the Initial Term, the Advertiser agrees to place and pay for an Ad with required dimensions displayed on the Website hyperlinked to a Member Profile Page or Universal Resource Locator (the “URL”) as directed by Advertiser or required by VSYV.

(3) Compensation and Procedure

During the Initial Term, the Advertiser shall pay to VSYV in advance the agreed upon amount in full (the “Fee”) as specified upon purchase and the Agreement shall commence thereafter for the advertising period as defined by the Start Date. VSYV retains the right to place self-promotion advertising in the Advertiser’s space until the Advertiser provides the advertising copy as required. The Fee is non-refundable and will not be pro-rated should the Advertiser decide to discontinue the display of the Ad at any time prior to the end of the Initial Term.

Website Advertisements are subject to the following procedure:

(i). From the Purchase Date, Member must provide the camera-ready artwork to VSYV at the required specifications via email to Danielle@VisitTheSantaYnezValley.com or another authorized representative of VSYV within fifteen (15) days as specified in the advertisement description;

(ii). If the Member artwork is not received by an authorized representative of VSYV within fifteen (15) days of the Purchase Date then the advertisement spot Member purchased will be returned to the marketplace for sale, and a re-circulation fee will be charged to Member equal to 25% of the advertisement price as agreed to upon the Purchase Date;

(iii). Once the Member artwork is received by VSYV, VSYV will approve Member’s advertisement content for publication via email or call the Member with questions within two (2) business days;

(iv). Once the Member’s advertisement is approved in writing by VSYV, VSYV will make the advertisement live on the Website on the Start Date.

(4) Ad Requirements

The Ad must be in .JPG or .GIF format, at the required specifications, and have a file size of less than 50k. Advertiser agrees to provide VSYV with an Ad via an e-mail attachment. If the Advertiser has no Ad prepared, VSYV’s exclusive vendor FirstStreet Creative (FSC) is available to create one for a fee of $125.00 per hour.

Ads may not:

Pretend to be a system or site warning
Mimic or resemble Windows/Max/Unix dialog boxes or error messages
Have mock animated features, such as drop-down menus or search boxes, unless the functionality actually works
Be “Trick To Click” ads which may confuse the user (this includes ads which simulate a cursor arrow moving and clicking on the Ad)
Imply an affiliation with VSYV unless authorized permission is granted in writing by VSYV

(5) Display, Placement & Rotation

Advertiser’s Ad will be displayed on applicable pages throughout VSYV’s website. This agreement is non-exclusive, meaning VSYV may have Ads from several parties appearing on its site at the same time.

(6) Animation Requirements

If acceptable and pertinent to this Agreement:

Animation is acceptable for Ads in .GIF or .SWF formats
Animation is restricted to a maximum of fifteen (15) seconds
Animation frame rate is restricted to a 15-20 fps frame rate
All Flash Ads must use Flash versions 4+
Flash code cannot make external server calls for additional Javascript or other functionality (all functionality must be localized to the code itself)
Any Ad submitted in Flash format is required to be clickable

(7) Acceptable Ad Content

VSYV reserves the right to exercise discretion regarding the advertising accepted for the VSYV site. Therefore, VSYV may not accept advertising related to certain products and services such as, but not limited to, mature sexual themes, nudity and/or sexual activity, crude or indecent language that may be offensive or inappropriate. VSYV reserves the right to withhold, withdraw or refuse to display any advertisement for any reason whatsoever, either before publication or after publication.

(8) Status Report

VSYV does not and cannot make any representation or warranty as to the number, frequency, or duration of any such “hits” as to Member’s advertisement(s) on the Website.

(9) Services Interruptions

Advertiser agrees not to hold VSYV or DADM responsible for any liability, loss, cost, claim, damage or causes of action of any kind that it may suffer as a result of the transactions contemplated hereby, including but not limited to loss resulting from service delays and incomplete or interrupted service, regardless of cause or fault. If for any reason VSYV, DADM or the website containing the Ad ceases to operate, then the Advertiser shall have no right of action regarding the cessation of operation of the website containing the Ad and the Advertiser shall not be released from any liability of right of action which at the time of cessation has already accrued to VSYV.

(10) Truth In Advertising / Indemnification For Liability

Advertiser is solely responsible for any liability arising out of or relating to the Ad, and/or any material to which users can link through the Ad. Advertiser represents and warrants that any information found on URLs hyperlinked from the Ad will not violate any criminal laws or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, image, or other proprietary or confidential information or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity.

Advertiser agrees to indemnify VSYV and to hold VSYV and its officers, directors, employees and agents harmless from any and all liability, loss, cost, damages, claims or cause of action of any kind, including reasonable legal fees and expenses that may be incurred by VSYV, arising out of or related to Advertiser’s breach of any of the foregoing representations and warranties.

Advertiser agrees to indemnify DADM and to hold DADM and its officers, directors, employees and agents harmless from any and all liability, loss, cost, damages, claims or cause of action of any kind, including reasonable legal fees and expenses that may be incurred by DADM, arising out of or related to Advertiser’s breach of any of the foregoing representations and warranties.

(11) Non-Solicit

Advertiser agrees that for a period of twelve (12) months following the termination of this agreement that Advertiser will not directly or indirectly: (i) recruit, solicit, induce or attempt to induce, or encourage others to recruit, solicit or induce, any of VSYV’s employees to terminate his/her employment with, or otherwise cease his/her relationship with VSYV; or (ii) hire or assist in the hiring of any of VSYV’s employees.

(12) Warranties/ Representations

VSYV represents and warrants that (a) all services delivered by it hereunder shall be provided and delivered in a diligent and professional manner by individuals with the necessary knowledge and training to provide the same; (b) it will comply in all material respects with all applicable laws, ordinances, rules and regulations (federal, state, local or agency) of the United States of America affecting the services contemplated by this Agreement; and (c) it has the full power, right and authority to enter into and perform this Agreement with Advertiser. Notwithstanding anything to the contrary herein, Advertiser shall be solely responsible for its terms of use and privacy policies.

(13) Confidential Information

The parties hereto acknowledge that each party’s signature on this Agreement is a condition of each party’s entering into this Agreement and of each party permitting the other to have access to “Confidential Information.” “Confidential Information” shall mean all confidential or proprietary information and documentation regarding either party, whether or not marked as such including, without limitation, all developments, data bases, records, marketing plans, or the contents of this Agreement. Confidential Information shall also include any other matters constituting trade secrets as defined under California Civil Code Section 3426.1. The parties hereto acknowledge and agree that the Confidential Information will be kept strictly confidential and that neither party will use or authorize anyone else to use any such information relating to the other party for any purpose whatsoever, whether for such party’s own benefit or the benefit of others. The parties hereto further agree not to discuss the Confidential Information and such party’s experiences with the other or the other’s competitors, or release materials to, any third party including representatives of the media or anyone else other than as provided herein. Any use or disclosure of Confidential Information without a party’s prior written consent will allow such party to go to court and seek a restraining order or injunction against the disclosing party or anyone to whom the disclosing party discloses the Confidential Information, together with damages, costs and outside attorneys’ fees, it being acknowledged and agreed that any breach or threatened breach of these terms may cause irreparable injury to the non-disclosing party and that money damages will not provide an adequate remedy. The foregoing shall not constitute a waiver of any rights a party may have to fact-based defenses to any request made by the other party for injunctive relief.

(14) Indemnification

Advertiser shall indemnify, defend and hold harmless VSYV, its parents and affiliates, and each of their respective officers, directors, employees and agents, for all claims, liabilities and costs, including reasonable attorneys’ fees, of defending any claim or suit arising out of the authorized use of the materials provided to VSYV by Advertiser pursuant to this Agreement.

Advertiser shall indemnify, defend and hold harmless DADM, its parents and affiliates, and each of their respective officers, directors, employees and agents, for all claims, liabilities and costs, including reasonable attorneys’ fees, of defending any claim or suit arising out of the authorized use of the materials provided to VSYV by Advertiser pursuant to this Agreement.

The indemnified party shall promptly notify the indemnifying party in writing of any claim for which indemnification is sought, provided that any failure to so notify the indemnifying party will not relieve the indemnifying party from any liability or obligation that it may have pursuant to this Section, except to the extent of any material prejudice to the indemnifying party resulting from such failure. If any such claim is made or brought against an indemnified party, the indemnifying party will be entitled to assume and control the defense of such claim with its own counsel. Each indemnified party shall be obligated to cooperate reasonably with the indemnifying party, at the expense of the indemnifying party, in connection with such defense and with the compromise or settlement of any such claim. Neither the indemnified party nor the indemnifying party shall settle or dispose of any such claim in any manner without the prior written consent of the indemnified party, which consent shall not unreasonably be withheld.

(15) Term and Termination

The Term of this Agreement will commence on the Effective Date and will terminate on the later of three (3) or six (6) months as specified at the time of purchase.

15.1 Termination for Material Breach or Dissolution. Either party may terminate this Agreement or any applicable Statement of Work in the event of a material breach by the other party if such breach continues uncured for a period of thirty (30) business days after receipt of such written notice. Additionally, either party may terminate this Agreement or any applicable Statement of Work upon thirty (30) calendar days written notice to the other party upon the occurrence of any one or more of the following: (i) the institution by or against the other party of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of the other party’s debts; (ii) the other party making an assignment for the benefit of creditors; or (iii) the other party’s dissolution.

15.2 Effect of Termination. The foregoing rights to terminate are in addition to, not in lieu of, all other rights and remedies which may be available to either party under this Agreement, at law and/or in equity. Upon termination or expiration of this Agreement the rights granted to VSYV by Advertiser under this Agreement or the particular Statement of Work will cease immediately upon the effective date of such termination or expiration and be of no further force or effect. VSYV shall immediately cease all use of any Advertiser materials and Work Product and shall return or destroy (at the request of Advertiser) all such materials and/or Work Product, subject to Advertiser’s payment obligations herein. If Advertiser terminates this Agreement for any reason other than a material breach, Advertiser shall be obligated to pay VSYV upon such termination any and all undisputed accrued and unpaid amounts and expenses due and payable to VSYV as of the date of termination. If VSYV terminates this Agreement pursuant to paragraph 15.1, Advertiser shall be obligated to pay VSYV upon such termination any and all undisputed accrued and unpaid amounts and expenses due and payable to VSYV as of the date of termination.

(16) Advertiser Acceptance. Following delivery of Work Product, Advertiser shall reserve the right, within five (5) business days after delivery from VSYV, to test and evaluate such Work Product to determine whether it conforms in all material respects to the applicable scope of work described herein. In the event that the Work Product is found by Advertiser to be defective or otherwise not in conformity with the requirements set forth herein or otherwise agreed upon by the parties, Advertiser will provide reasonable detail by virtue of written notice to VSYV and a sufficient opportunity to cure the Work Product defects or nonconformities described within that notice. If no notice of any deficiency is provided within five (5) business days of any delivery, the Work Product will be deemed accepted. It is understood that any corrections shall be performed at the expense of VSYV provided such corrections are within the Statement of Work. Promptly upon receiving such notice of any deficiency, VSYV will exert best reasonable commercial efforts to (a) correct any deficiencies so that the Work Product substantially conforms to the requirements, and (b) submit the applicable Work Product for further acceptance testing within a reasonable time after of receiving the deficiency notice. If VSYV is unable to correct such deficiencies, Advertiser shall have the right to terminate this Agreement immediately, and VSYV shall refund to Advertiser any fees paid by Advertiser to VSYV in connection with the applicable Work Product.

(17) Miscellaneous

17.1 – Entire Agreement. This Agreement, including all exhibits hereto, sets forth the entire Agreement and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision by signed agreement.

17.2 – Amendment. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by the party subject to enforcement of such amendment.

17.3 – Waiver. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.

17.4 – Assignment. VSYV may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Advertiser.

17.5 – Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.

17.6 – Governing Law. This Agreement, and any and all disputes arising from or relating to this Agreement, will be governed by and construed under the laws of the State of California, without reference to its conflicts of law principles. All disputes relating to this Agreement shall be brought solely in the state and federal courts located in Santa Barbara County, California. Each of the parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in Santa Barbara County, California for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts.

17.7 – Headings. The captions and headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

17.8 – Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. This Agreement may be executed by facsimile signature (or similar technology).

17.9 – Relationship of the Parties. Each party is an independent contractor of the other party and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

17.10 – Delay of Obligations. VSYV will not be liable nor deemed to be liable to the Advertiser for failure or delay in meeting any obligation due to strikes and/or lockouts (whether of their own employees or those of others), Acts of God, war, fire, flood, embargo, litigation, acts of government or any agency instrumentality or any political subdivision thereof, technical difficulties or any other cause beyond the control of VSYV. In any such event, and if possible, the time for performance of the obligations under this Agreement will be extended by the same period or periods (as the case may be) for the obligation is delayed.

17.11 – Non-Transferable. All advertising sales on VSYV are non-transferable.

17.12 – Additional Terms. Advertiser’s advertisement(s) will not go live on VSYV’s website platform until payment is received in full by VSYV. Advertiser’s advertisement(s) will not go live on VSYV’s website platform until the content of the advertisement is approved in writing by an authorized representative of VSYV.

VisitSYV – Member Page Enhancement Agreement (If Applicable)

This letter confirms the confidential agreement (hereinafter to be referred to as “Agreement”) between Member (hereinafter to be referred to as “Member”) and The Santa Ynez Valley Hotel Association, Inc. dba VisitSYV (hereinafter to be referred to as “VSYV”) with respect to Member’s agreement to purchase a Member Page Enhancement (the “Enhancement”) upon the following terms and conditions on the www.VisitSYV.com website platform (hereinafter referred to as “Website”) located on the World Wide Web and operated by Day After Day Marketing, Inc. dba FirstStreet Creative (hereinafter to be referred to as “DADM”).

(1) Term / Non-Exclusivity

The Agreement shall commence on the date Member purchases Enhancement from VSYV (the “Purchase Date”). The Enhancement will run continuously for twelve (12) months as specified at time of purchase (the “Initial Term” or “Term”) and begin running within forty-eight (48) hours after the Purchase Date (the “Start Date”). No Enhancements will go active on the Website until payment is received in full by VSYV. Throughout the Term, VSYV will provide services to Member on a non-exclusive basis.

(2) Definition

During the Initial Term, the Member agrees to place and pay for an Enhancement with required dimensions displayed on the Website hyperlinked to a Member Profile Page or Universal Resource Locator (the “URL”) as directed by Member or required by VSYV. It is understood and accepted by Member that neither VSYV nor DADM has any control over the software/technology of 3^rd party social media providers, and therefore cannot be held liable in the event that said 3^rd party social media providers restrict, change or alter technology to the Website, VSYV or its operator DADM.

(3) Compensation

During the Initial Term, the Member shall pay to VSYV in advance the agreed upon amount in full (the “Fee”) as specified upon purchase and the Agreement shall commence thereafter for the Enhancement period as defined by the Start Date. The Fee is non-refundable and will not be pro-rated should the Member decide to discontinue the display of the Enhancement at any time prior to the end of the Initial Term.

(4) Enhancement Requirements

The Enhancement must be in .JPG or .GIF format, at the required specifications, and have a file size of less than 50k. Member agrees to provide VSYV with an Enhancement via an e-mail attachment. If the Member has no Enhancement prepared (if applicable), VSYV’s exclusive vendor FirstStreet Creative (FSC) is available to create one for a fee of $125.00 per hour.

Enhancements may not:

Pretend to be a system or site warning
Mimic or resemble Windows/Max/Unix dialog boxes or error messages
Have mock animated features, such as drop-down menus or search boxes, unless the functionality actually works
Be “Trick To Click” ads which may confuse the user (this includes ads which simulate a cursor arrow moving and clicking on the Enhancement)
Imply an affiliation with VSYV unless authorized permission is granted in writing by VSYV

(5) Display, Placement & Rotation

Member’s Enhancement will be displayed on applicable pages throughout VSYV’s website. This Agreement is non-exclusive, meaning VSYV may have Enhancements from several parties appearing on its site at the same time.

(6) Animation Requirements

If acceptable and pertinent to this Agreement:

Animation is acceptable for Enhancements in .GIF or .SWF formats
Animation is restricted to a maximum of fifteen (15) seconds
Animation frame rate is restricted to a 15-20 fps frame rate
All Flash Ads must use Flash versions 4+
Flash code cannot make external server calls for additional Javascript or other functionality (all functionality must be localized to the code itself)
Any Enhancement submitted in Flash format is required to be clickable

(7) Acceptable Enhancement Content

VSYV reserves the right to exercise discretion regarding the content accepted for the VSYV site. Therefore, VSYV may not accept content related to certain products and services such as, but not limited to, mature sexual themes, nudity and/or sexual activity, crude or indecent language that may be offensive or inappropriate. VSYV reserves the right to withhold, withdraw or refuse to display any Enhancement and/or content for any reason whatsoever, either before publication or after publication.

(8) Status Report

VSYV does not and cannot make any representation or warranty as to the number, frequency, or duration of any such “hits” as to Member’s Enhancement(s) on the Website.

(9) Services Interruptions

Member agrees not to hold VSYV or DADM responsible for any liability, loss, cost, claim, damage or causes of action of any kind that it may suffer as a result of the transactions contemplated hereby, including but not limited to loss resulting from service delays and incomplete or interrupted service, regardless of cause or fault. If for any reason VSYV, DADM or the website containing the Enhancement ceases to operate, then the Member shall have no right of action regarding the cessation of operation of the website containing the Enhancement and the Member shall not be released from any liability of right of action which at the time of cessation has already accrued to VSYV.

(10) Truth In Advertising / Indemnification For Liability

Member is solely responsible for any liability arising out of or relating to the Enhancement, and/or any material to which users can link through the Enhancement. Member represents and warrants that any information found on URLs hyperlinked from the Enhancement will not violate any criminal laws or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, image, or other proprietary or confidential information or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity.

Member agrees to indemnify VSYV and to hold VSYV and its officers, directors, employees and agents harmless from any and all liability, loss, cost, damages, claims or cause of action of any kind, including reasonable legal fees and expenses that may be incurred by VSYV, arising out of or related to Member’s breach of any of the foregoing representations and warranties.

(11) Non-Solicit

Member agrees that for a period of twelve (12) months following the termination of this agreement that Member will not directly or indirectly: (i) recruit, solicit, induce or attempt to induce, or encourage others to recruit, solicit or induce, any of VSYV’s employees to terminate his/her employment with, or otherwise cease his/her relationship with VSYV; or (ii) hire or assist in the hiring of any of VSYV’s employees.

(12) Warranties/ Representations

VSYV represents and warrants that (a) all services delivered by it hereunder shall be provided and delivered in a diligent and professional manner by individuals with the necessary knowledge and training to provide the same; (b) it will comply in all material respects with all applicable laws, ordinances, rules and regulations (federal, state, local or agency) of the United States of America affecting the services contemplated by this Agreement; and (c) it has the full power, right and authority to enter into and perform this Agreement with Member. Notwithstanding anything to the contrary herein, Member shall be solely responsible for its terms of use and privacy policies.

(13) Confidential Information

(14) Indemnification

Member shall indemnify, defend and hold harmless VSYV, its parents and affiliates, and each of their respective officers, directors, employees and agents, for all claims, liabilities and costs, including reasonable attorneys’ fees, of defending any claim or suit arising out of the authorized use of the materials provided to VSYV by Member pursuant to this Agreement.

(15) Term and Termination

The Term of this Agreement will commence on the Effective Date and will terminate twelve (12) months later as specified at the time of purchase.

15.2 Effect of Termination. The foregoing rights to terminate are in addition to, not in lieu of, all other rights and remedies which may be available to either party under this Agreement, at law and/or in equity. Upon termination or expiration of this Agreement the rights granted to VSYV by Member under this Agreement or the particular Statement of Work will cease immediately upon the effective date of such termination or expiration and be of no further force or effect. VSYV shall immediately cease all use of any Member materials and Work Product and shall return or destroy (at the request of Member) all such materials and/or Work Product, subject to Member’s payment obligations herein. If Member terminates this Agreement for any reason other than a material breach, Member shall be obligated to pay VSYV upon such termination any and all undisputed accrued and unpaid amounts and expenses due and payable to VSYV as of the date of termination. If VSYV terminates this Agreement pursuant to paragraph 15.1, Member shall be obligated to pay VSYV upon such termination any and all undisputed accrued and unpaid amounts and expenses due and payable to VSYV as of the date of termination.

(16) Member Acceptance. Following delivery of Work Product, Member shall reserve the right, within five (5) business days after delivery from VSYV, to test and evaluate such Work Product to determine whether it conforms in all material respects to the applicable scope of work described herein. In the event that the Work Product is found by Member to be defective or otherwise not in conformity with the requirements set forth herein or otherwise agreed upon by the parties, Member will provide reasonable detail by virtue of written notice to VSYV and a sufficient opportunity to cure the Work Product defects or nonconformities described within that notice. If no notice of any deficiency is provided within five (5) business days of any delivery, the Work Product will be deemed accepted. It is understood that any corrections shall be performed at the expense of VSYV provided such corrections are within the Statement of Work. Promptly upon receiving such notice of any deficiency, VSYV will exert best reasonable commercial efforts to (a) correct any deficiencies so that the Work Product substantially conforms to the requirements, and (b) submit the applicable Work Product for further acceptance testing within a reasonable time after of receiving the deficiency notice. If VSYV is unable to correct such deficiencies, Member shall have the right to terminate this Agreement immediately, and VSYV shall refund to Member any fees paid by Member to VSYV in connection with the applicable Work Product.

(17) Miscellaneous

17.4 – Assignment. VSYV may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Member.

17.7 – Headings. The captions and headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

17.10 – Delay of Obligations. VSYV will not be liable nor deemed to be liable to the Member for failure or delay in meeting any obligation due to strikes and/or lockouts (whether of their own employees or those of others), Acts of God, war, fire, flood, embargo, litigation, acts of government or any agency instrumentality or any political subdivision thereof, technical difficulties or any other cause beyond the control of VSYV. In any such event, and if possible, the time for performance of the obligations under this Agreement will be extended by the same period or periods (as the case may be) for the obligation is delayed.

17.11 – Non-Transferable. All Enhancement sales on VSYV are non-transferable.

17.12 – Additional Terms. Member’s Enhancement(s) will not go live on VSYV’s website platform until payment is received in full by VSYV. Member’s Enhancement(s) will not go live on VSYV’s website platform until the content of the Enhancement is approved in writing by an authorized representative of VSYV.