TheParkingPlace.com Terms of Service
Last Updated: May 24, 2011
These Terms of Service govern your participation in and/or use of certain services or features of TheParkingPlace.com, a website owned and operated by Media Breakaway, LLC (the "Site," "Media Breakaway", "we" or "our"). By participating in or using the services or features of the Site, you ("you," "your," or "Domain Owner") are agreeing to be bound by these terms of service ("Terms of Service").
1. Domain Monetization Services
TheParkingPlace.com is a service that empowers domain name owners to generate earnings based on appropriate incoming traffic to their domains, as described herein.
1.1 Payment; Factors Affecting Payment; Taxes and Withholding; Payment Disputes.
A. Payment. Domain Owner will be paid a commission based on a percentage of Net Revenues (as defined herein) received by Media Breakaway. If Domain Owner generates at least $1,000 revenue each week, Domain Owner may apply to take advantage of Media Breakaway's weekly wire payment, less applicable wire fee. Approval of such weekly wire application is at Media Breakaway's sole discretion and may be revoked at any time. If Domain Owner does not generate at least $1,000 per week in earnings or is not approved for weekly wire payment, Commissions will be mailed to Domain Owner in U.S. Dollars (USD) within twenty (20) days after the end of the month in which the Net Revenue was received. In the event that the commission payable for a particular calendar month is less than $100, the amount earned will be rolled over to the next month and combined with that month's earnings until at least $100 is earned. Additionally, in the event Domain Owner has a past due advertising invoice with Media Breakaway, we may off-set and apply any available earnings from the Site hereunder, if any, against the amount past due.
B. Factors Affecting Payment. Domain Owner acknowledges and agrees that Media Breakaway agrees to make commission payments to Domain Owner pursuant to these Terms of Service based on the mutual understanding that Media Breakaway will be able to monetize the traffic through agreements with its upstream advertiser partners ("Advertisers") and that such agreements require that payment be made only upon appropriate traffic. As such, Domain Owner acknowledges and agrees that all traffic generated to domains participating in the Site will be subject to review by Media Breakaway's proprietary traffic quality scoring process which will not be disclosed to Domain Owner. If Media Breakaway is unable to collect revenues from any such third party partners due to any failure of Domain Owner to comply with the terms of these Terms of Service, any breach of Domain Owner's representations, warranties or covenants contained herein, the quality of the traffic which is being delivered to domains participating in the Site or any other factor that would prevent Media Breakaway from earning Revenue on Domain Owner Websites, then commissions payable to Domain Owner hereunder shall be reduced accordingly. If the amount earned by Domain Owner hereunder is reduced to an amount less than the amount previously paid by Media Breakaway, then Domain Owner shall, upon invoice by Media Breakaway, immediately pay the difference to Media Breakaway. Without limiting the generality of the foregoing, Domain Owner understands and agrees that in the event any payment is made by Media Breakaway to Domain Owner and Media Breakaway's Advertiser subsequently denies payment to Domain Owner for Clicks generated from those Domain Owner Websites, Media Breakaway shall be entitled to repayment of any such amount whether through reduction of future payments to Domain Owner or Domain Owner's repayment to Media Breakaway of any such commissions based on such Clicks for which payment is denied. Further, Domain Owner agrees that Media Breakaway may withhold payments (i) while Clicks are being reviewed in its traffic quality process or (ii) if Media Breakaway reasonably believes that such Media Breakaway will not receive payment for such Clicks from its Advertisers.
C. Taxes and Withholding. Domain Owner understands and agrees that taxes with respect to commissions or any other payments made by Media Breakaway to Domain Owner hereunder will not be withheld or paid directly or indirectly by Media Breakaway unless Media Breakaway determines in its sole discretion that Media Breakaway or its affiliates may be liable for any such taxes, in which case it shall withhold the estimated amount and notify Domain Owner of such withholding. Domain Owner understands and agrees that it is Domain Owner's responsibility to pay all applicable local, state, federal, and/or foreign taxes on commissions and other income received from Media Breakaway pursuant to these Terms of Service. Domain Owner agrees to promptly reimburse and indemnify Media Breakaway from any claim or assessment of taxes by any foreign, United States, state, and/or local taxing authority, and any other costs and damages, arising from or in connection with the operation of this Section 1.1. All payments may occur only after Domain Owner supplies a valid and signed IRS Form W-9 for U.S. companies or individuals or a valid and signed IRS Form W-8 for foreign residing companies or individuals. Address and contact information on these forms may be confirmed as correct, prior to any payouts.
D. Payment Disputes. Domain Owner understands and agrees to address any questions Domain Owner may have with any payment of commissions under these provisions to Media Breakaway within thirty (30) days of the date of such payment, in writing or by e-mail to email@example.com. Failure to so notify Media Breakaway within such period will constitute an acceptance of, and agreement with, the applicable payment.
1.2 Restrictions and Rights
All of the following terms and conditions must be adhered to and are legally binding, immediately upon acceptance of these Terms of Service.
A. Media Breakaway reserves the right to terminate Domain Owner's participation in the Site in its absolute and sole discretion at any time.
C. Domain Owners are prohibited from monetizing domain names they do not own using the Site by all previously mentioned methods.
D. Domain Owners may not misrepresent their ownership of a domain name in any way.
E. Domain Owners may not beg, ask, entice, or incentivize End Users into clicking on our links.
F. Domain Owners may not mislead End Users into believing that the End User will receive anything, other than an internet search by clicking on a text link or search box or otherwise encourage End Users, either with or without their knowledge, to click on advertising results through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent, in the sole but reasonable judgment of Media Breakaway.
G. Media Breakaway reserves the right to terminate your account if it is idle for more than a month. Media Breakaway may notify you in advance of such cancellation.
H. Domain Owner may not direct or redirect domains to the Media Breakaway's servers in any manner which has not been previously approved by Media Breakaway. As such, Media Breakaway reserves any and all rights to direct the method by which Domain Owner directs or redirects its domains to the Media Breakaway's servers, whether through DNS, redirect code or otherwise.
Additional Restrictions. Domain Owner shall not: (a) edit, modify, filter, alter, truncate, rearrange, add to, or change the look, feel or content of any Landing Page or Search Results Page; (b) host the Landing Page or Search Results Pages; (c) (i) redirect an End User away from the Search Results Page, (ii) provide a version of the Search Results Page different from the page served to an End User by or as directed by Media Breakaway, (iii) cache, capture, or store any search results or intersperse any content between the Search Results Page and destination page which would result from a Click on a link on the Search Results Page, including, without limitation, content framing (framing of landers or framing of the search results is prohibited without prior written permission by the Media Breakaway for all Landing Pages or Search Results Pages) or (iv) display any Search Results Pages or Landing Pages, or the content thereof, in part or in total, to any third parties, including, without limitation, display on any Domain Owner Websites or anywhere else, (d) enter into any arrangement or agreement under which any third party pays Domain Owner fees or shares in any revenue payments and/or royalties for any search results displayed on the Domain Owner Website, except as permitted in these Terms of Service or (e) display graphical or text units in any form (including but not limited to pop-up, pop-under or exit windows, expanding buttons and animation) that block or otherwise inhibit the full and complete display to End Users of any Search Results Pages or Landing Pages accessed by clicking on our links.
No Domain Owner Website shall: (a) provide any interface for a Downloadable App, any marketing materials for any Downloadable App, or any hyperlinks to any of the foregoing; (b) be a downloadable or Internet accessible application, as determined by Media Breakaway in its sole reasonable discretion; (c) under any circumstances, be a competitor of any search engine company, as determined by Media Breakaway in its sole reasonable discretion; (d) place, display or use any unauthorized branding or attribution of any kind on such Domain Owner Website, including without limitation on any Landing Page, Search Results Page or framed in conjunction with any such pages, to indicate that any search engine is providing such results or for other promotional purposes, (e) except to the extent provided by Media Breakaway, contain any pornographic, hate-related or violent content or contain any other material, products or services that (i) violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights, or (ii) would otherwise give rise to civil liability or (f) include content above or below the Landing Page, unless that content is submitted for approval in writing to Media Breakaway and pre-approval in writing is received from Media Breakaway, prior to any such content being displayed on the Domain Owner Website.
In the event that any domain name is blocked from use on the Site by Media Breakaway, such domain name may not participate, either directly or indirectly, in the Site without the express written consent of Media Breakaway. Accordingly, neither Domain Owner nor anyone acting on behalf of Domain Owner shall redirect or attempt to redirect the domain name to the Site through use of embedded redirection or other method intended to avoid the blocking of such domain name from participation in the Site. Any failure to comply with the terms of this policy may result in an immediate termination of Domain Owner's account and forfeiture of any commissions earned or to be earned by Domain Owner hereunder.
Domain Names & Intellectual Property Rights. Domain Owner shall not place with Media Breakaway or in any way through the Site a domain name to which it does not have valid ownership, as determined by Media Breakaway in its sole discretion. In the event that any such domain name is provided for use in the Site, and such lack of rights or a claim of intellectual property infringement is brought to the attention of Media Breakaway, then Media Breakaway shall have the right to cancel the participation of any such domain name(s) in the Site, and, in appropriate situations, in the sole discretion of Media Breakaway, terminate Domain Owner's participation in the Site and seek legal recourse against Domain Owner and any others involved in accordance with these Terms of Service and applicable law.
Representatives and Agents. If a Domain Owner desires to have a representative or agent manage and control their account with Media Breakaway, either individually or aggregated with other accounts managed by such representative or agent, Domain Owner's use of such representative or agent shall be subject to the following terms: (i) such representative or agent must have agreed to be bound by these Terms of Service and otherwise must be in good standing with Media Breakaway, as detailed below; (ii) Domain Owner shall be deemed to have authorized such representative or agent to take any and all actions with respect to the Domain Owner's account and participation of Domain Owner's domain names in the Site, including without limitation, being the authorized contact for all communications to and from Media Breakaway and being authorized to make any and all changes with respect to Domain Owner's account with Media Breakaway and Media Breakaway shall be fully entitled to rely on, and shall have no liability to Domain Owner with respect to, any and all requests, decisions, actions and/or omissions of such representative or agent with respect to Domain Owner's account and/or domain names; and (iii) Domain Owner's commission payments and Domain Owner's account with Media Breakaway may be suspended, cancelled or terminated if such representative or agent violates these Terms of Service with respect to any account or domain name participating in the Site which is under its control, even if such breach is unrelated to such Domain Owner's account. If Domain Owner desires to remove its representative or agent from its account, it must do so by delivering written notice to Media Breakaway specifically revoking the authority of such representative or agent from such Domain Owner's account, such revocation not to be effective until written confirmation from Media Breakaway of receipt of its written request. Domain Owner acknowledges and agrees that in the event Domain Owner's representative or agent is removed as provided herein, Media Breakaway may change any and all terms applicable to Domain Owner's commissions, including the rate, payment thresholds and other payment terms to be consistent with other individual Domain Owners' accounts, and that Domain Owner's account may be subject to cancellation if Domain Owner does not meet minimum performance standards as an individual account.
For purposes of this Agreement, a Domain Owner or representative shall be in "good standing" if such Domain Owner (or if a representative, then such representative and each customer of the representative who would be Domain Owners hereunder) is not currently in violation of these Terms of Service, has not been in repeated violation of these Terms of Service, even if such past violations have been cured, and has not been subjected to excessive Revenue deductions or adjustments in Media Breakaway's discretion.
Each representative or agent that manages and/or controls accounts or domain names participating in the Site for which they are not the owner agrees to be bound by these Terms of Service for all such accounts and domain names. Each such representative or agent acknowledges and agrees that (i) a violation of these Terms of Service with respect to any one account managed or controlled by it shall constitute a violation of these Terms of Service for all accounts managed or controlled by such representative or agent and may result in all of such accounts being suspended or terminated, (ii) in the event that Media Breakaway receives complaints or other communications from the owner of accounts or domain names managed by such representative or agent expressing their dissatisfaction with such representative or agent, Media Breakaway may, in its sole and absolute discretion, revoke such representative's or agent's status as a representative for accounts or domain names with Media Breakaway and Media Breakaway may work directly with such representative's or agent's clients and (iii) it shall treat all confidential information of a managed account confidential and that disclosure of such information to anyone other than Media Breakaway or the client shall constitute a violation of such client's privacy and may result in Media Breakaway revoking such representative or agent's status as a representative for accounts or domain names participating in the Site.
Account Access. When a Domain Owner uses the services provided by Media Breakaway, Domain Owner will be required to create an account with Media Breakaway to use its web-based interface. Domain Owner is responsible for selecting and continuously managing his, her or its password and security settings to protect Domain Owner's account and Domain Owner's domain monetization settings (including Domain Owner's contact information) from unauthorized changes. Domain Owner is entirely responsible for maintaining the confidentiality and secrecy of Domain Owner's password and account security settings, as well as Domain Owner's other information. All consequences of Domain Owner's voluntary disclosure of password and account information as well as all activities that occur in Domain Owner's account are Domain Owner's responsibility.
Domain Owner agrees to notify Media Breakaway immediately of any unauthorized use of Domain Owner's account or any other breach of security. Domain Owner agrees that it will be responsible for all activity that arises from Domain Owner's account, whether initiated by Domain Owner or others on Domain Owner's behalf and Media Breakaway shall be entitled to rely on any requests which have been initiated from Domain Owner's account. Media Breakaway disclaims any liability for any activity in Domain Owner's account, whether initiated or authorized by Domain Owner or not.
Additional Definitions. As used herein, the following capitalized terms shall have the meanings provided as follows:
"Clicks" means a click by an End User. "Clicks" do not include clicks which are invalid as determined by Media Breakaway's internal tracking system and traffic quality scoring process or for which Media Breakaway does not recognize revenue from its advertiser partners. Invalid Clicks may include clicks (i) generated by automated crawlers, robots or click generating scripts providing traffic which has no intent to sign-up, purchase or otherwise act upon a product or service offering; (ii) multiple clicks on the same advertisement within a brief period of time, or (iii) that an advertiser receives and rejects for a valid business purpose (e.g., a Click which was not generated by an End User).
"Domain Owner Website" means any website associated with a domain name owned by a Domain Owner which participates in the services or features of the Site.
"End User" means a bona fide living human Internet user. An "End User" excludes any person or any mechanical, artificial or fraudulent means (such as a so-called robot, spider, software or scraper) lacking an intention to purchase, sign up or otherwise act upon a product or service of the marketer contained on a Landing Page or Search Results Page.
"Landing Page" means an html page or a framed html page hosted by or on behalf of Media Breakaway displaying search links, search results and/or other content from Media Breakaway servers or such servers as Media Breakaway uses.
"Net Revenue" means Revenue adjusted for any bad debt, net credits or returns from previous payment periods, less any amount Media Breakaway determines, in its sole discretion, was the result of improper use of Domain Owner Websites and as such revenue is otherwise calculated or adjusted by Media Breakaway to take into account (i) any exclusions set forth in these Terms of Service, (ii) the results of Media Breakaway's traffic quality scoring process and (iii) any other adjustments made by Media Breakaway in its sole discretion. Media Breakaway may exclude from Net Revenue monies from traffic that originates from countries where traffic is, in the sole discretion of Media Breakaway, suspect or difficult to track in the normal course of business or is determined to be invalid on a consistent and regular basis by Media Breakaway or its Advertiser.
"Revenue" means estimated gross revenue to be received by Media Breakaway for a particular calendar month as a direct result of Clicks on an advertisement or other promotional link attributable to traffic from Landing Pages or Search Results Pages hosted on a Domain Owner Website pursuant to the Site as reported by Media Breakaway's Advertiser as of the end of such calendar month.
"Search Results Page" means an html page hosted by or on behalf of Media Breakaway displaying search results pulled from Media Breakaway servers (or such other servers as Media Breakaway elects to use), which has resulted from a typed in search or a keyword click from and only from a Landing Page. Search Results Pages accessed by End Users through the Site shall be solely through Media Breakaway's servers (or such other servers as Media Breakaway in its sole discretion may use, hosted on Media Breakaway's servers or domains, meaning that Media Breakaway shall host or on its behalf provide for hosting of all Search Results Pages in response to valid queries entered by End Users).
Consequences of Non-Compliance. Domain Owner acknowledges that, in addition to any other remedies at law that Media Breakaway may have, failure by Domain Owner to comply with any or all of the terms in these Terms of Service will result in (i) the forfeiture by Domain Owner of any yet unpaid commissions and/or (ii) the obligation to pay additional compensation from future earnings, over time, to compensate for the monies paid out by Media Breakaway plus applicable interest, limited to 5% per annum of the principal, accrued monthly. Future earnings payment applies only if Domain Owner is a still existing client. Monies due will be based solely on payments made on such domain names with issues of violations for the time period that Domain Owner's domain names subject to the Site were in violation of the terms plus any applicable interest, as stated above. Media Breakaway shall make the determination of length of time and value of any violation of the terms herein, solely and such determinations will be final. Domain Owner may present information to the contrary up to fifteen (15) calendar days after notification to Domain Owner of the beginning of the investigation. Domain Owner agrees to hereby accept Media Breakaway's decisions regarding such violations of the Terms of Service as final and wave any litigation rights, whatsoever, of any issue, compensation or otherwise relating to the decision and/or Terms of Service violations. Domain Owner or Media Breakaway may terminate these Terms of Service at any time. Media Breakaway reserves the right to access any outstanding balance payments, in its sole discretion, if Domain Owner, its subsidiary, or related company were to reapply to be a Domain Owner using the Site at any time in the future. Finally, such failures may also result in the termination of Domain Owner's account.
2. General Terms
2.1 Representations & Warranties
Media Breakaway represents and warrants that it has full power and authority to enter into these Terms of Service. Domain Owner represents and warrants that (i) it has full power and authority to agree to these Terms of Service, and (ii) it owns or has the right to use all necessary rights to the Domain Owner domain names and Domain Owner Websites.
THE SITE, MEDIA BREAKAWAY AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, ADVISORS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, VENDORS, ADVERTISERS AND AGENTS (COLLECTIVELY THE "SITE PARTIES") ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING ADVERTISERS). EXCEPT AS EXPRESSLY SET FORTH HEREIN, NONE OF THE SITE PARTIES MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. THE ENTIRE RISK ARISING OUT OF THE USE OF THE SITE OR PERFORMANCE OF THE DOMAIN OWNER WEBSITES REMAINS WITH DOMAIN OWNER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SITE PARTIES SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING (A) THE SUCCESS OF THE SITE, (B) THE NUMBER OF END USERS, IF ANY, WHO MAY SEE ADVERTISEMENTS THROUGH THE SITE, AND (C) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE SITE. THE SITE IS PROVIDED "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" WITHOUT WARRANTY, OF ANY KIND, AND ANY USE BY YOU SHALL BE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SITE PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SITE, EVEN IF MEDIA BREAKAWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL, CUMULATIVE LIABILITY OF THE SITE PARTIES FOR ANY DIRECT DAMAGES INCURRED HEREUNDER SHALL NOT EXCEED FIFTY DOLLARS ($50.00). BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO DOMAIN OWNER.
2.2 Intellectual Property
As between Media Breakaway and Domain Owner, Media Breakaway (or others it so designates in writing) shall own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), relating to the Site (and any derivative works or enhancements thereof), including but not limited to, all software, technology, processes, materials, guidelines, documentation, relating in any way to the Site. For purposes of these Terms of Service, "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide. Domain Owner shall not, and shall not allow any third party to: (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any intellectual property in any way related to the Site or Media Breakaway; (ii) affix any unauthorized copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Site, or any other technology, software, materials and documentation related to the Site or Media Breakaway; (iii) crawl, index or in any non-transitory manner store or cache information obtained from the Site; (iv) transfer, sell, lease, lend, disclose, or use for co-branding without explicit written permission from Media Breakaway, any aspect of the Site under any timesharing, service bureau or other unauthorized method or access thereto; (v) directly or indirectly access, launch and/or activate the Site through or from any software application or means other than the Domain Owner Website; or (vi) engage in any action or practice that reflects poorly on the Site, Media Breakaway or its Advertisers, or otherwise disparages or devalues the reputation or goodwill of the same.
Domain Owner agrees to safeguard and, except for the benefit of the Site, not to disclose to anyone outside the Site any proprietary or confidential information acquired from Domain Owner's access to the Site. Such information includes, without limitation, business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.
Media Breakaway reserves the right to change these Terms of Service at any time in its sole discretion and pursuant to applicable law. Amended versions of this Agreement will be effective upon posting at www.theparkingplace.com, and when such changes are deemed to be material by Media Breakaway, email notice of such amended version will be sent to Domain Owner. Your continued use of the Site after the effective date of any such changes will constitute your acceptance of and agreement to such changes. If YOU DO NOT WISH TO BE BOUND TO ANY NEW TERMS, YOU MUST TERMINATE THESE TERMS OF SERVICE BY IMMEDIATELY CEASING USE OF THE SITE.
Media Breakaway agrees to use commercially reasonable efforts to minimize unscheduled modification and maintenance interruptions. However, Media Breakaway reserves the right to modify or maintain the Site at any time, with or without notice to Domain Owner.
Domain Owner shall indemnify, defend, and hold harmless the Site Parties from and against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses (including interest, penalties, reasonable attorney fees, accounting fees, and expert witness fees) incurred by the Site Parties, known or unknown, contingent or otherwise, directly or indirectly arising from Domain Owner's breach of any term or provision of these Terms of Service or any way related to Domain Owner's use of the Site, including but not limited to any claim that the domain name is owned by someone other than Domain Owner or that the domain name infringes on the intellectual property rights of a third party. Media Breakaway shall notify Domain Owner of any such claim and shall cooperate with Domain Owner, at Domain Owner's expense, in defending or settling such claim. Domain Owner may not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects Media Breakaway rights without Media Breakaway's prior written consent. Media Breakaway may join in defense with counsel of its choice at its own expense. If Domain Owner does not assume the defense of any such claim within thirty (30) days after the date notice of such claim is given, Media Breakaway may defend against such claim in such manner as it may deem appropriate at Domain Owner's expense, including, without limitation, settling such claim, after giving notice of the same to Domain Owner.
Governing Law. These Terms of Service shall be governed by, and construed in accordance with, the laws of the State of Colorado, without giving any effect to any choice of law provisions thereof that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Service.
Jurisdiction and Venue. Any litigation based hereon, or arising out of, under, or in connection with these Terms of Service, shall be brought and maintained exclusively in the courts of the State of Colorado or in the United States District Court for the District of Colorado. The parties hereto hereby expressly and irrevocably submit to the jurisdiction of the courts of the State of Colorado and of the United States District Court for the District of Colorado for the purpose of any such litigation as set forth above. Each party further agrees that service of any process, summons, notice or document by U.S. certified mail to such party's respective postal address as set forth in the notice section shall be effective service of process for any action, suit or proceeding in the state and federal courts located in the State of Colorado, with respect to any matters to which it has submitted to jurisdiction as set forth above. In addition, each party irrevocably and unconditionally waives application of the procedures for service of process pursuant to the Hague Convention for Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The parties hereto hereby expressly and irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such litigation brought in any such court referred to above and any claim that any such litigation has been brought in an inconvenient forum.
Waiver of Jury Trial. Each of the parties hereto hereby waives, to the fullest extent permitted by applicable law, any right to a trial by jury in any action or proceeding to enforce or defend any rights under these Terms of Service and any amendment, instrument, document or agreement delivered or which may in the future be delivered in connection herewith or therewith, and agrees that any such action or proceeding shall be tried before a court and not before a jury.
No Third Party Beneficiaries. These Terms of Service are made solely for the benefit of Domain Owner and the Site Parties and their respective successors and assigns, and no other person or entity shall have or acquire any right by virtue of these Terms of Service.
Prohibition of Assignment. Domain Owner may not assign any of its rights or delegate any of its duties under these Terms of Service without the prior written consent of the Media Breakaway. Despite such consent, no assignment shall release the assignor of any its obligations or alter any of its primary obligations to be performed under these Terms of Service.
Successors and Assigns. Except as otherwise expressly provided in these Terms of Service, these Terms of Service shall bind and inure to the benefit of the successors, assigns, heirs, executors and administrators of the parties to these Terms of Service.
Independent Contractor. The relationship of Domain Owner and Media Breakaway established by these Terms of Service is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riot, act of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
Waiver. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms of Service shall be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No failure or delay by Media Breakaway in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Entire Agreement. Except as may be set forth in an written agreement signed between Media Breakaway and Domain Owner, these Terms of Service constitute the final, complete, and exclusive statement of the terms of the use of the Site between the parties and supersedes all prior and contemporaneous understandings or agreements of the parties.
Severability. If a court or an arbitrator of competent jurisdiction holds any provision of these Terms of Service to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of these Terms of Service or affecting the validity or enforceability of such provision in any other jurisdiction.
Attorneys Fees. If Media Breakaway prevails in any action, suit, or proceeding arising from or based upon these Terms of Service, Media Breakaway shall be entitled to recover from Domain Owner Media Breakaway's reasonable attorneys' fees in connection therewith in addition to the costs of such action, suit, or proceeding.
Headings. The headings in these Terms of Service are included for convenience only and shall neither affect the construction or interpretation of any provision in these Terms of Service nor affect any of the rights or obligations of the parties these Terms of Service.
Notice. Any notice, communication or statement relating to these Terms of Service shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or other confirmed electronic transmission; (iii) when delivered by certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service (including but not limited to Federal Express) to the address of the respective party as indicated herein (or in the case of Domain Owner, as last provided to Media Breakaway); (iv) in the event of non-material changes to this Agreement, notice shall be deemed effective upon posting at www.theparkingplace.com; (v) and in the event of material changes to this Agreement, notice shall be effective upon the sending of an email from Media Breakaway to the email address last provided by Domain Owner. Copies of all notices shall be sent to Media Breakaway, LLC, 1490 W. 121st Ave., Suite 201, Westminster, CO 80234, Attn: Legal Department.
Survival. Sections 2.1, 2.3, 2.5, 2.7, and any other obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of these Terms of Service shall survive and remain in effect after such happening.
Interpretation. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of these Terms of Service. These Terms of Service shall not be construed against either party by reason of its drafting.