This Client agreement ("Agreement") lists the terms and conditions between you (this means "you", hereinafter "you" or Advertiser") and Pointcom.com, Inc., a California corporation (hereinafter "Pointcom.com" or "we" or "us") for the placement of links, access to the Pointcom.com network, sale of advertising spacing throughout the Pointcom.com network., and other services. By clicking the "I agree" button below, you hereby accept the terms and conditions of this Agreement and may bid on advertising links and placement throughout the proprietary Pointcom.com network. Access to POINTCOM.COM's proprietary platform and on-line services subject to the unconditional agreement and compliance of the Advertiser with the terms and conditions below (hereinafter the "Agreement"). We may amend this Agreement at anytime by posting the amended terms on our site. Except as stated below, all amended terms and conditions shall automatically be effective thirty (30) days after we initially post them on our site. This Agreement may not be otherwise amended except in writing signed by you and Pointcom. Pointcom is available to individuals and authorized partners and officers of corporations who can enter into legally binding or authorized contracts under applicable law. Without limiting the foregoing our services and products are not available to minors, temporarily or indefinitely terminated clients, nor to any suspended or non active partnership nor corporation..
By electing to sign up as an Advertiser with POINTCOM.COM, the Advertiser can bid for ranking to have the Advertiser's Website URL and description displayed on POINTCOM.COM's result pages for various pre-selected key words and search terms. The Advertiser's listing will be displayed on the user's search result pages followed by traditional search results and editor selected sites. The Advertiser hereby understands and agrees that users may view and access the Advertiser's search listing advertisements through POINTCOM.COM's branded Website www.Pointcom.com
The Advertiser hereby agrees that POINTCOM.COM will bill the Advertiser's account for all the click-throughs for key terms featured on the Advertiser's search listing advertisement multiplied by the bid amount that the Advertiser has selected. The Advertiser hereby agrees to an initial, nonrefundable enrollment fee of $25, which will be applied towards the Advertiser's click-throughs charges. Further, POINTCOM.COM shall bill the Advertiser for the all applicable taxes, if any, in accordance with the billing terms in effect at the time the fees become payable. The Advertiser hereby agrees and acknowledges that POINTCOM.COM will give a refund to the Advertiser for any billed click-throughs if the Advertiser's Website should go down or if the Advertiser cancel its account for some reason beyond the control of POINTCOM.COM.
Payment for the click-throughs shall be automatically deducted by POINTCOM.COM from the Advertiser's account. The Advertiser can add funds to its account via a credit card or by check. For all amounts exceeding $1000, the Advertiser shall be required to send a check made payable to POINTCOM.COM.COM INC. POINTCOM.COM shall process an Advertiser's check within one week of receipt. If the Advertiser exhausts the funds available in its account its search listing advertisement shall be put on hold until the Advertiser replenishes the funds available in his account, unless the Advertiser has selected to have its account automatically replenished upon exhaustion of funds by a credit card. POINTCOM.COM reserves the right to suspend or terminate the Advertiser's account, without limitation, if payment cannot be charged to the Advertiser's credit card or the Advertiser's check is returned, or if a chargeback is posted to the Advertiser's account.
4. Advertisers Rights and Responsibilities
4.1 Advertiser submissions The Advertiser may submit the Advertiser's material for the Advertiser search key terms listing, define URLs, and submit titles and descriptions for its site via: "http://pointcom.com/about_pointcom/promote.html". The Advertiser acknowledges that by submitting material to POINTCOM.COM the Advertiser is irrevocably granting POINTCOM.COM the right to use all parts of the material, without limitation, as if it was in the public domain, including modifying it or using it commercially and authorizing others to do so.
4.2 Submission Requirements The Advertiser shall be required to submit accurate and relevant descriptions, title and pertinent key words for its site. In addition, the advertiser shall be specifically required to indicate whether its site contains adult content or links to any sites displaying adult content, by selecting the "I Agree" radio button on the Create Listing page of the Account Management Section. POINTCOM.COM reserves the right to terminate the Advertiser's account if POINTCOM.COM feels that the Advertiser has submitted any false or misleading information or content, including text or graphics, or whether the site contains adult content, which might misdirect the user about the content of the Advertiser's site. POINTCOM.COM reserves the right, without notice to the Advertiser, to accept, edit, reject or remove any search listing advertisement for any reason, at any time, at its sole discretion.
4.3 Advertiser Responsibility The Advertiser shall be solely responsible for determining whether suggested advertising terms comply with the requirements of the Advertiser Submissions Section herein above.
5. Representation and Warranties
5.1 The Advertiser hereby represents and warrants that the Advertiser is the authorized owner or representative of the site with sufficient authority to enter into this Agreement for the Website(s) for which links are requested.
5.2 The Advertiser agrees and represents that all information the Advertiser provides for the purpose of enrolling, as an Advertiser will be accurate, complete and current.
5.3 The Advertiser represents and warrants that the Website(s) (i) does not violate any law or regulation of any governmental agency, (ii) does not infringe in any manner on any copyright, patent, trademark, trade dress, trade secret or any other intellectual property rights of any third party, (iii) does not breach any duty or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any user fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity, (iv) is not false or misleading, (v) is neither involved in illegal activity, hate activity, nor promotes violence or discrimination, based on race, sex, religion, nationality, disability, sexual orientation, or age, and/or (vi) is neither defamatory, libelous, slanderous or threatening.
6. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITYTHE ADVERTISER EXPRESSLY AGREES THAT THE USE OF POINTCOM.COM IS AT THE ADVERTISER'S OWN RISK.
POINTCOM.COM IS AVAILABLE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER POINTCOM.COM NOR ANY OF ITS LICENSORS, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRATORS, MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING POINTCOM.COM, ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH POINTCOM.COM OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. POINTCOM.COM HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ALL INFORMATION PROVIDERS, LICENSORS AND/OR LICENSEES OF IT ANY AND ALL WARRANTIES INCLUDING, WITHOUT LIMITATION (1) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF POINTCOM.COM AND /OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH POINTCOM.COM; AND (2) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO THE ADVERTISER. THIS LIMITED WARRANTY GIVES THE ADVERTISER SPECIFIC LEGAL RIGHTS, AND THE ADVERTISER MAY ALSO HAVE OTHER RIGHTS, WHICH MAY VARY FROM STATE TO STATE.ANY LIABILITY OF POINTCOM.COM, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS, OR CONTRACTORS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF POINTCOM.COM'S RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT ALREADY PAID TO POINTCOM.COM, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE POINTCOM.COM AND/OR THE SITES LINKED TO FROM POINTCOM.COM OR FOR ANY BREACH OF WARRANTY. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE ADVERTISER.THE ADVERTISER AGREES THAT THE ADVERTISER WILL NOT HOLD POINTCOM.COM RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH POINTCOM.COM AND/OR SITES LINKED TO FROM POINTCOM.COM, INCLUDING, WITHOUT LIMITATION, THOSE WITH WHOM POINTCOM.COM CONTRACTS TO OPERATE VARIOUS PORTIONS OF POINTCOM.COM.COM AND THOSE TO WHOM POINTCOM.COM PROVIDES LINKS TO FOR CONTENT, ADVERTISING OR ANY OTHER TYPE OF DATA OR INFORMATION.
The Advertiser hereby agrees to indemnify, defend (with counsel reasonably acceptable to POINTCOM.COM), protect and hold harmless POINTCOM.COM, its officers, directors, shareholders, affiliated entities and persons, employees, agents, representatives and attorneys (collectively the "Representatives") from and against any and all claims, causes of actions, demands, judicial and administrative proceedings, liabilities, forfeitures, errors, damages, costs and expenses (including without limitation, reasonable attorneys' fees and attendant costs and expenses, whether or not suit is filed or proceedings instituted thereon), directly or indirectly arising in connection with this Agreement, or any breach or default in performance by the Advertiser of any of the Advertiser obligations hereunder.
8. Parties Relationship
8.1 Nothing in this Agreement is intended by POINTCOM.COM or the Advertiser to create or constitute a joint or collaborative venture or partnership of any kind between the Advertiser and POINTCOM.COM, nor shall anything in this Agreement be construed as constituting or creating any agency, employment relationship, joint or collaborative venture or partnership between the Advertiser and POINTCOM.COM, its employees, agents or assigns.
8.2 The Advertiser acknowledges and agrees that POINTCOM.COM shall have no control nor ownership interests of any kind in the Advertiser's business or its Website.
8.3 The Advertiser hereby agrees and understands that POINTCOM.COM is not responsible for the maintenance of the Advertiser's Website. The Advertiser further acknowledges and agrees that POINTCOM.COM has no direct or indirect control over the content of performances or services, the manner of performances or services, or the time or duration of provision of performances or services by the Advertiser on, at or in association with its Website except as specifically set forth in this Agreement.
8.4 The Advertiser acknowledges and agrees that the Advertiser shall have no financial or other interest in POINTCOM.COM or any property owned by POINTCOM.COM, its Advertisers, agents, successors or assigns.
9.1 If the Advertiser is dissatisfied with POINTCOM.COM or with any of the terms and conditions contained herein, the Advertiser's sole and exclusive remedy is to terminate its account. The Advertiser may cancel the Advertiser's participation in POINTCOM.COM at any time by sending a signed writing at the address stated below.
9.2 POINTCOM.COM may, in its sole discretion, without prior notice, terminate the Advertiser account, and discontinue the Advertiser's participation in POINTCOM.COM, or the Advertiser's use of any search term. POINTCOM.COM shall terminate the Advertiser account if POINTCOM.COM believes that the Advertiser conduct is harmful to other users and Advertisers who participate in POINTCOM.COM. All decisions made by POINTCOM.COM in this matter shall be final.
9.3 POINTCOM.COM.com, in its sole discretion, may suspend or terminate the Advertiser account with POINTCOM.COM.com including, without limitation, if payment cannot be charged to the Advertiser's credit card or the Advertiser check is returned, if a chargeback is posted to the Advertiser account, or if POINTCOM.COM feels that the Advertiser has provided false or misleading information or violated the terms of this Agreement. IMPORTANT: CANCELLATION OR TERMINATION MAY NOT ALWAYS ENTITLE THE ADVERTISER TO A REFUND. PLEASE SEE THE SECTION ENTITLED REFUNDS FOR MORE INFORMATION.
If the Advertiser decides to terminate its account, and the Advertiser provides a written notice to POINTCOM.COM, the Advertiser's account will be deemed terminated when POINTCOM.COM receives such notice. The Advertiser will only receive a refund for amounts not yet charged to the Advertiser's account. The Advertiser will not receive a refund for the initial $25 enrollment fee as the Advertiser agreed that this amount is nonrefundable. See PAYMENT section.
POINTCOM.COM may give general notices to the Advertiser by posting on www.Pointcom.com or, if possible, via electronic mail to the Advertiser's email address on file at Pointcom.com, Inc. The Advertiser may give notice to POINTCOM.COM in writing to:
Attn: Account Services
22048 Sherman Way Suite 204
Canoga Park, California 91303
12. Choice of Law
This Agreement shall be construed and controlled by the laws of the State of California. Any dispute arising in connection with this Agreement, including, without limitation, a breach of this Agreement, shall be governed by the laws of the State of California. The Advertiser hereby agrees and understands that this Agreement is entered in Los Angeles, California and venue and jurisdiction shall be Los Angeles, California.
The parties hereby agree that in the event of any controversy or dispute arising with respect to this Agreement shall be settled in accordance with the prevailing rules of the American Arbitration Association ("AAA") and such arbitration shall be determined by the Los Angeles Division of the AAA.
14. Force Majeur
In the event Pointcom is prevented from performing by reason of electrical or communications line interruption, fire, accident, strike, riot, act of terrorism, act of God, or the public enemy, due to War or similar basis, this Agreement shall resume as soon as practicable and Advertiser hereby agrees and understands that Pointcom shall not be liable to Advertise in any manner whatsoever.
15. Further Assurances
Each party to this Agreement shall execute all instruments and documents and take all actions as may be reasonably required to effectuate this Agreement.
16. Time of Essence
Time and strict and punctual performance are of the essence with respect to each provision of this Agreement.
Pointcom, in their sole discretion may waiver their rights at anytime. Such waiver shall not be construed as a further waiver at a subsequent time. Advertisers rights and remedies are deemed waived upon occurrence.
18. Prior Understanding
This Agreement contains the entire agreement between the parties to this Agreement with respect to the subject matter of this Agreement, is intended as a final expression of such parties' agreement, is intended as a complete and exclusive statement of the terms of such agreement, and supersedes all negotiations, stipulations, understandings, agreements, representations and warranties, if any, with respect to such subject matter, which precede the execution of this Agreement. POINTCOM.COM may change this Agreement at any time upon notice published on www.Pointcom.com Any use of POINTCOM.COM shall be deemed to be continued acceptance of this Agreement including its amendments and modifications. POINTCOM.COM reserves the right to discontinue offering POINTCOM.COM services at any time.
19. Partial Invalidity
Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application of such provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or unenforceability, unless such provision or such application of such provision is essential to this Agreement.
20. ACCEPTANCE AND EXECUTION OF THIS AGREEMENT.
BY CLICKING ON THE "SUBMIT FORM" BUTTON ON THE POINTCOM.COM SIGN-UP PAGE, AND BY SUPPLYING POINTCOM.COM WITH ALL THE REQUIRED INFORMATION TO OPEN AND MANAGE AN ACCOUNT, THE ADVERTISER ACKNOWLEDGES THAT THE ADVERTISER AGREES TO ALL OF THE TERMS, CONDITIONS, PROMISES, WARRANTIES, DUTIES AND OBLIGATIONS SET FORTH IN THE ABOVE AGREEMENT.