This Agreement is entered into by 1-800-TAXICAB, INC. ("Company") and the party receiving Services from Company (the “Advertiser”).
1. Company Policies & Service Agreement Advertiser Sign Up Form. This Agreement is subject to all applicable Company policies, which, when applicable, are contained at http://www.1800taxicab.com/clientservices/companypolicies.htm (the “Company Policies”). Company Policies or the referenced web address may be modified any time in the sole and absolute discretion of Company. The Advertiser hereby warrants and represents that the information provided in the online sign up form submitted by Advertiser (the “Online Sign Up Form”) (also sometimes referred to as the Addendum - Advertiser Information), which is incorporated by reference as if set forth fully herein, is true and accurate.
2. Certain Definitions. As used herein, the following terms shall have the following meanings:
“Account Interface” means a password-protected site or area of a site communicated to Advertiser by a Company website. “Advertiser Business Offerings" means Advertiser’s services and products. “Advertiser’s Artwork” means collectively any Artwork that was created by Advertiser, or by a third party on Advertiser’s behalf. “Advertising” or “Ads” mean advertising entries that may be listed in Company Properties. “Artwork” means the Advertising, or any portion thereof, including but not limited to, text, graphics, illustrations, urls, name, trade names, service marks, slogans, symbols, logos and photographs to be posted and/or published on behalf of Advertiser. “Company Mark(s)” means the name of Company or any of its brands, or its respective service marks, trademarks, trade names, logos, slogans, photographs or other identifying marks, copyrightable or copyrighted materials or other representations or materials, including without limitation “1-800-TAXICAB”, “Just Cab It” and “One Number Nationwide”. “Company Property” (or “Company Properties”) means any content or property provided by Company, including but not limited to the National Taxi Directory, the National Airport Shuttle Directory, the National Limousine Directory, the National Paratransit Directory, the Telephonic Network, listings in Company databases submitted to directory assistance service providers, Company website(s), and any print directories or brochures that may be published by Company from time to time. “Confidential Information” means non-public information of Company, any call detail information, information that a reasonable person would consider confidential, or information that is marked as "confidential" or "proprietary" by Company. Confidential Information does not include information that is generally known and available, or in the public domain through no fault of Advertiser. “Directory Ad” means an Ad on the Company Property as specified in the Online Sign Up Form “Geographic Market” means the particular geographic area for which the Ads are targeted. “National Taxi Directory” means the Company’s directory of taxicab companies currently accessible at the url http://www.1800taxicab.com, with such url changeable by Company without notice, and various derivative directories if any. “National Airport Shuttle Directory” means the Company’s directory of airport shuttle companies currently accessible at the url http://www.1800taxicab.com/airport-shuttle.htm, with such url changeable by Company without notice, and various derivative directories if any. “National Limousine Directory” means the Company’s directory of chauffeured transportation companies currently accessible at the url http://www.1800taxicab.com/limo-directory.htm, with such url changeable by Company without notice, and various derivative directories if any. “National Paratransit Directory” means the Company’s directory of chauffeured transportation companies currently accessible at the url http://www.1800taxicab.com/limo-directory.htm, with such url changeable by Company without notice, and various derivative directories if any. “Rank” means the ranking of an Ad under a particular Geographic Market heading with the Ad listed first being Ranked first and the Ad listed second being Ranked second, and so on. “Third Party Property” means content or property provided by a third party upon which Company places Ads.
3. Company Services. Subject to the terms and conditions of this Agreement, Company shall provide to Advertiser during the Term the following “Services”: a) a Directory Ad in the National Paratransit Directory under the Geographic Market headings specified in the Sign-Up Form (or, if not specified, in Advertiser’s service category as determined by Company); Advertiser is solely responsible for all Ad content, whether generated by or for Advertiser, and web sites proximately reachable from Ads and Advertiser Business Offerings. Directory Ads are typically ranked in order of signup, except in the event of special premium ranking offers, such as “Gold” or “Platinum” listings, which are listed above listings without such premium placement. Advertiser agrees to review any and all Advertising, prior to posting. In the event that Company designs an Ad or listing for Advertiser, unless Advertiser within one (1) business day gives notice or sends edits to email@example.com, Advertiser shall be conclusively deemed to have approved such Ad or listing. Company may publish advertising of any other party in any Company Property at any time. Company has the sole right and discretion to operate its business in any manner it chooses, including but not limited to the right to determine and/or change the Services, Company Policies, name, look, pricing policies, content, Incentives, headings, sequence of headings, design, publishing or editorial policies, specifications, standards and guidelines, printing, publication and distribution of its Services and Company Property. Company has the right to reject, modify, modify in part, suspend or cancel Advertising that does not comply with this Agreement or Company Policies. Company does not warrant to Advertiser that advertising of other advertisers will comply with this Agreement or Company Policies. Company is not obligated to publish any Advertising that Company, in its sole and absolute discretion, deems unacceptable. Company may in its sole and absolute discretion with no notice define, adjust, subdivide, combine, discontinue, or modify any Geographic Market. Other than as otherwise expressly agreed to herein, Company has the right to place advertising in any position within a Company Property (including within headings or pages therein) and to introduce new advertising products and services that may result in a change in the position of Advertising in a Company Property.
4. Term and Automatic Renewal. This Agreement is effective when signed by Advertiser and accepted by Company and shall continue for one month (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive renewal terms of equal duration (each a “Renewal Term”) unless Advertiser or Company provides the other with written notice of non-renewal at least three (3) days prior to the expiration of the Initial Term or the then-current Renewal Term, as the case may be. The Initial Term and any Renewal Term may be collectively referred to herein as the “Term.” The first day of the Initial Term and each Renewal Term is referred to herein as a “Start Date.”
5. Cancellation. Advertiser may cancel this Agreement by sending written notice to Company, or, if and when available, by logging in to the Advertiser’s Account Interface and submitting a cancellation request. Such cancellation will be effective when written notice is received. Such cancellation by Advertiser will have no effect on amounts already due and payable or paid. Company may cancel or modify immediately the Services at any time with notice. Company may, at any time and with notice to Advertiser, cancel and/or reject this Agreement, in whole or in part, for any reason as determined by Company in its sole discretion, and in such event, this Agreement will remain effective as to any Advertising not canceled or rejected. Notwithstanding any termination of this Agreement, Sections 7, 8, 9.2, 10, 12, 13, 15, 17, 20, 21 shall survive any termination of this Agreement. Upon any termination, Advertiser shall remit any remaining payments due hereunder. Unless expressly provided herein, neither party shall have any further rights or obligations hereunder upon the expiration or termination of this Agreement.
6. Fees and Charges. Advertiser shall pay the Monthly Fee, in the amount specified in the Online Sign Up Form and shopping cart, on or before the Start Date of each Term.
7. Payment. All Fees are due and payable in advance on the Start Date of each Term, unless otherwise agreed in writing executed by the parties. Company shall process payment by Advertiser’s credit card for Fees on or around the Start Date. Advertiser has the option to make payment by check or money order, but it must do so in full no later than the date due. Advertiser waives all claims relating to charges unless claimed within ten (10) days after the charge (this does not affect credit card issuer rights if any). Advertiser acknowledges and agrees that Advertiser information and any credit card or ACH information and related billing and payment information that is provided to Company may be shared by Company with companies who work on Company's behalf, such as payment processors and/or credit agencies, for the purposes of checking credit, effecting payment to Company, reporting delinquent accounts, and servicing the account. Company may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Company shall not be liable for any use or disclosure of such information by such third parties. Upon Advertiser’s failure to pay any invoiced amount when due, including but not limited to any failure to pay as a result of declined, expired, or invalid credit card, returned/void(ed) ACH transaction, or returned or dishonored check, Company may, in addition to any other rights or remedies it may have, asses Advertiser a $25 returned payment service fee (or the highest lawful rate if it is less) for returned check fees and any other fees allowed by law and discontinue and/or remove any Advertising. Company may require information regarding creditworthiness. Company has the right to allocate and apply periodic payments received from Advertiser to and among charges owed by Advertiser, as it sees fit. Advertiser waives any defense to payment of the entire amounts due based upon Advertiser’s conditional tender of less than the full amount due, an offer to compromise made by Advertiser, UCC 3-311, or an alleged accord and satisfaction. If payment is not timely made, Advertiser agrees to pay an interest charge of 1.5% per month (or the highest lawful rate if it is less) beginning on the Start Date, on the past due amount until paid. Advertiser agrees that this interest charge is a reasonable charge to compensate Company for the inability to use the funds Advertiser has not paid to Company. Advertiser agrees to pay any and all reasonable expenses and attorney fees Company incurs collecting late amounts. Advertiser loses any Seniority status by failing to make timely payment. Advertiser agrees that Company’s collection costs include both internal and external costs of Company and that it would be impractical and cost-prohibitive for Company to calculate the actual costs associated with collection activities for each Advertiser’s account. Company may create, revise or cancel Incentives at any time. No Incentives offered to Advertiser obligate Company to offer any future discount, promotional offering, or incentives not specifically included in the initial offer. If Advertiser receives Incentives for any Advertising and Advertiser subsequently cancels or fails to fulfill any of Advertiser’s commitments to Company, then the Incentives will be void and Advertiser will be obligated to pay the full undiscounted Rate for the Advertising for which Incentives were granted.
8. Intellectual Property. If any Artwork was created by or for Company, Company owns all rights, title and interest in and to the copyright in the Artwork. Company may therefore use, publish, reproduce, distribute, display publicly, promote, perform, resize, rearrange, modify and create derivative works of the Artwork and the Advertising for use and/or publication in any Services, Company Property, Third Party Property, directories, advertisements, websites, or other publications in perpetuity. In addition, Company may sell, license or otherwise transfer an interest in Company’s Artwork without any accounting to Advertiser. To the extent that Advertiser claims or could claim any right, title or other interest in and to the copyright in the Artwork created by or for Company or in the Advertising, it irrevocably assigns this interest to Company for no additional consideration. Upon request, Advertiser will take such steps as are reasonably necessary to enable Company to record such assignment, including executing such further documents as may be reasonably necessary to accomplish same. Advertiser warrants and represents that it has the right to use, publish, reproduce distribute, display publicly, promote, perform, resize, rearrange, modify and create derivative works of Advertiser’s Artwork and the Advertising for publication on Advertiser’s behalf in any Company Property or in connection with the Company Services, now or in the future. Advertiser, for itself and any such third party, grants a permanent license to Company to use, publish, reproduce, distribute, display publicly, promote, perform, resize, rearrange, modify and create derivative works of Advertiser’s Artwork and the Advertising for use and/or publication in any Services, Company Property, Third Party Property, directories, advertisements, websites, or other publications in perpetuity. Advertiser represents and warrants that the Advertising, Artwork, and Advertiser Artwork do not infringe any third party intellectual property rights. Advertiser will notify Company immediately if Advertiser becomes aware of any facts or circumstances indicating that any of Advertiser’s representations in this Section 8 are untrue. If Company receives notice that another person or entity contests Advertiser’s right to use a logo, name, trademark, service mark or other content Advertiser requested to be printed, Company may terminate this Agreement in its entirety and/or reject or cancel the Advertising, without liability, until such time as Advertiser has resolved the dispute with the other party to Company’s satisfaction. If Advertiser’s right and authority to use any advertising content, Artwork, or Advertiser’s Artwork is terminated or otherwise changes or any proceeding contesting that right is begun, Advertiser will immediately provide written notice to Company. Advertiser is solely responsible for the enforcement and protection of Advertiser’s intellectual property included in the Advertising. Company shall have the irrevocable right to use the Advertising in any materials advertising, promoting and/or publicizing Company or Company’s Services. Advertiser may not reproduce the Advertising for any purpose without the express written permission of Company. Except as otherwise provided herein, Company owns the copyright in and to each Company Property, the National Taxi Directory, National Airport Shuttle Directory, National Limousine Directory, National Paratransit Directory, the Telephonic Network, directory assistance database(s), directory and all other intellectual property in or any Company Property. Advertiser expressly agrees that in the event Company uses any text, graphics, illustrations, urls, name, trade names, service marks, slogans, symbols, logos and photographs taken from Advertiser websites or advertising, printed documents, or other publications, if Advertiser fails to object to such use with written notice then such text, graphics, illustrations, urls, name, trade names, service marks, slogans, symbols, logos and photographs are to be deemed Advertiser’s Artwork hereunder and thereby subject to the license in this Section 8.
9.2 Acknowledgment. Advertiser acknowledges that (i) the Company Marks are owned solely and exclusively by Company and that all worldwide rights, title to and ownership of the Company Marks shall remain with Company, (ii) nothing contained in this Agreement shall give to Advertiser any right, title or interest in the Company Marks, and (iii) Advertiser’s use, authorized or unauthorized, of the Company Marks shall inure only to the benefit of Company and any benefits accruing from use, authorized or unauthorized, of the Company Marks, or associated marks, advertising materials, and trade dress created hereafter in connection with the Company Marks shall automatically vest in Company and shall not confer on Advertiser any right, title or interest in the Company Marks. Advertiser shall not take any action that is inconsistent with Company’s ownership of its Company Marks. Advertiser shall not form any combination marks with Company’s Company Marks or create or attempt to register anywhere any mark that is confusingly similar to Company’s Company Marks. Advertiser shall not use any of the Company Marks as a trade name, service mark, business name, fictitious business name or d.b.a. Advertiser acknowledges the exclusive right, title and interest of Company in and to the Company Marks and hereby quitclaims to Company any right, title, interest, and associated goodwill it has or may acquire with respect to the Company Marks, including without limitation any right, title or interest it may acquire through the unauthorized use of the Company Marks as a trade name, service mark, business mark, fleet name, trade styling, fictitious business name or d.b.a. Advertiser shall not seek or obtain any registration of the Company Marks (including any colorable imitations, translations or transliterations thereof) or participate directly or indirectly in such registration anywhere in the world. If Advertiser has obtained or obtains in the future, in any location in the world, any right, title, or interest in the Company Marks (including any colorable imitations, translations or transliterations thereof) or in any marks which are confusingly similar to the Company Marks (including any colorable imitations, translations or transliterations thereof), Advertiser has acted or will act as an agent and for the benefit of Company for the purpose of obtaining and assigning such registrations to Company. Advertiser shall execute any and all instruments deemed by Company to be necessary to transfer such right, title or interest to Company. Advertiser shall not directly or indirectly contest the validity or ownership of the Company Marks, trade names or trade secrets, during or after the Term of this Agreement, or take any action whatsoever in derogation of Company’s claimed rights therein. Notwithstanding anything in this Agreement to the contrary, this Section 9.2 shall survive termination or expiration of the Agreement.
9.4 Advertiser Responsibility for Own Business and Success. Advertiser is an established, fully operational and licensed transportation service company. Company is not providing any assistance or advice as to Advertiser’s operational matters and will not be exercising any control over Advertiser’s operations. Advertiser is and shall remain fully responsible for all of Advertiser’s operational matters and business decisions. Advertiser is solely responsible for the success of Advertiser’s business and is not relying on the services provided by Company for Advertiser’s success. Company does no represent or promise that Advertiser will attain any increase in revenue or profit by utilizing the services provided by Company under this Agreement.
10. Confidentiality & Publicity. During the term of this Agreement, Advertiser may have access to Confidential Information. Advertiser agrees (i) not to disclose any Confidential Information to any third parties, (ii) not to use any Confidential Information for any purposes except carrying out Advertiser rights and responsibilities under this Agreement and (iii) to keep the Confidential Information confidential using the same degree of care Advertiser uses to protect Advertiser’s own confidential information, as long as Advertiser uses at least reasonable care. These obligations survive for 3 years after termination of the Agreement.
Advertiser may not create, publish, or distribute any items that reference Company, Services, or Company Properties without first submitting those items to Company and receiving Company’s written consent.
11. Reporting & Account Interface. Company does not provide any reports showing the number of times Ads are viewed, or click through numbers, or directory assistance calls connected to Advertiser, or other similar data. Advertiser acknowledges that such reports will not necessarily ever be available. In the event that Company, in its sole and absolute discretion, provides any such reports, Advertiser agrees such reports will be deemed Confidential Information. In the event that Company provides Advertiser a password to enable Advertiser to enter an Account Interface, Advertiser agrees to protect such password. If applicable, Advertiser shall take full responsibility for the use, including by third parties, of Advertiser Account Interface.
12. Disclaimer of Warranties and Limitation of Liability. FOR PURPOSES OF THIS SECTION 12, THE TERM "COMPANY" INCLUDES COMPANY’S CORPORATE PARENT(S) AND AFFILIATES, AND THE DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES THEREOF. THE SERVICES ARE PROVIDED “AS IS.” ADVERTISER AGREES AND ACKNOWLEDGES THAT COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, TITLE, AND QUALITY. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING SERVICES OR ANY RESULTS OF THEIR USE. THE COMPANY DISCLAIMS ALL WARRANTIES ARISING FROM TRADE PRACTICE, A COURSE OF DEALING, OR USAGE. THE COMPANY DISCLAIMS ALL GUARANTEES REGARDING THE AVAILABILITY OR LEVELS OR TIMING OR POSITIONING OF ANY (i) CALLS, INCLUDING DIRECTORY ASSISTANCE CALLS, (ii) CLICKS, (iii) COSTS PER CALL OR CLICK, (iv) CLICK THROUGH OR CALL THROUGH RATES, (v) DELIVERY OF ANY IMPRESSIONS ON ANY COMPANY PROPERTY OR THIRD PARTY PROPERTY OR SECTIONS OF SUCH PROPERTY, OR (vi) CONVERSIONS FOR ANY ADS.
ADVERTISER UNDERSTANDS THAT THE OPERATION OF THE SERVICES AND COMPANY PROPERTIES MAY NOT BE UNINTERRUPTED OR ERROR FREE. ADVERTISER AGREES THAT COMPANY WILL NOT BE LIABLE FOR ANY INTERRUPTIONS OR ERRORS IN USING THE SERVICES. ADVERTISER AGREES THAT ERRORS OR OMISSIONS WILL SOMETIMES OCCUR IN PROCESSING A REQUEST FOR ADVERTISING OR IN THE PUBLICATION OR POSTING OR DELIVERY OF ADVERTISING, OR IN THE HANDLING OR CONNECTING OF ANY CALLS, AND THAT COMPANY CANNOT AND DOES NOT GUARANTEE THAT ADVERTISING WILL BE PUBLISHED OR POSTED ONLINE OR CONNECTED OR ROUTED WITHOUT ERROR OR OMISSION OR DELIVERED AS SCHEDULED BY COMPANY, DUE TO THE POSSIBILITY OF SUCH ERRORS OR OMISSIONS OCCURRING. COMPANY HAS NO OBLIGATION TO GIVE ADVERTISER OR ANY THIRD PARTY NOTICE OF SUCH ERRORS OR OMISSIONS, OR TO CORRECT THEM BY RECALLING OR REPRINTING DIRECTORIES, OR BY PERFORMING SUPPLEMENTAL DELIVERY IF APPLICABLE. COMPANY IS NOT LIABLE TO ADVERTISER FOR AN ERROR OR OMISSION IF IT: WAS CAUSED BY A THIRD PARTY; RESULTED FROM ADVERTISER OR INFORMATION SUPPLIED ADVERTISER OR BY A THIRD PARTY; OR WAS CAUSED BY AN ACT OF GOD, TERRORISM, TECHNOLOGICAL FAILURE, LABOR STOPPAGE, GOVERNMENTAL AUTHORITY OR ACT BEYOND COMPANY’S REASONABLE CONTROL. COMPANY WILL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ADVERTISER REPRESENTS THAT ADVERTISER HAS NOT RELIED UPON ANY WARRANTIES AND ASSUMES ALL RISKS CONCERNING THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF THE ADVERTISING. ADVERTISER AGREES THAT COMPANY’S AGGREGATE LIABILITY TO ADVERTISER, IF ANY, IS LIMITED TO THE AGGREGATE AMOUNTS PAID TO COMPANY BY ADVERTISER IN THE PREVIOUS THREE (3) MONTHS.
13. Indemnification. In this paragraph Company shall mean Company and its subsidiaries, affiliated companies and their respective officers, agents, representatives and employees. Advertiser shall mean Advertiser, its subsidiaries, affiliated companies and their respective officers, agents, representatives and employees. Advertiser agrees to indemnify Company from and against any and all damages, costs and expenses (including attorneys’ fees and expenses) incurred by or asserted against Company arising out of Advertiser’s activities, Advertiser’s Business Offerings, Advertiser’s negligent acts or omissions or willful misconduct, or any breach or alleged breach of any representation or warranty made under this Agreement by Advertiser.
14. Prohibited Uses. Advertiser shall not, and shall not authorize any party to: (i) generate automated, fraudulent or otherwise invalid impressions or clicks or calls on Company Property or telephone numbers or directory assistance services; or (ii) advertise anything illegal or engage in any illegal or fraudulent business practice in any state or country where the Ad is displayed. Advertiser represents and warrants that it will not use the Telephonic Network for any purpose other than to receive bona fide calls for the Advertiser Business Offering and not as a means of internal Advertiser communication (i.e. using it as a means for drivers to call dispatch). Advertiser shall treat all calls received in connection with the Services identically in all respects as Advertiser treats calls received not in connection with the Services. For example, characteristics of the call handling such as the greetings, messages, call flow, call handling, order taking, dispatching, and automation or lack thereof, and any and all other services ultimately rendered to the end-user passenger shall be identical for calls received in connection with the Services as for calls received otherwise. A Dispatch Telephone Number to be dedicated exclusively for use in connection with the Services is allowed for tracking purposes only, and only so long as the features experienced by the callers to such Dispatch Telephone Number are identical to the features experienced by the callers to the Advertiser’s primary dispatch telephone line used in the conduct of its primary business. Deviations must be approved in writing by the Company. Violation of these policies or any Company Policies or any terms of this Agreement may result in immediate termination of this Agreement without notice and may subject Advertiser to legal penalties and consequences.
15. Advertiser Warranties, Representations and Covenants. Advertiser hereby represents and warrants that it has the full right and authority to enter into and fully perform this Agreement in accordance with its terms. Advertiser represents that it is not subject to any restrictive obligations imposed by former contracts that would impair its abilities to perform in connection with its obligations pursuant to this Agreement. Advertiser represents and warrants that the Advertiser Business Offerings and/or use by Company of Advertising, Artwork, and/or Advertiser Artwork and websites linked from Ads will not violate or encourage violation of any applicable laws. Advertiser hereby covenants that it is and shall remain in full compliance with all applicable Federal, state and local laws and regulations. Advertiser further hereby covenants that Advertiser Business Offerings will be rendered using sound, professional practices and in a competent and professional manner in accordance with industry standards. Advertiser will immediately notify Company in writing of a dissolution of Advertiser or of ceasing to conduct business under the normal course or of the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of its debts. Advertiser will immediately notify Company in writing of a change in its Dispatch Telephone Number or change in service area. Advertiser hereby covenants that it shall make reasonable efforts to serve end users’ transportation needs continuously at all hours during the Term of this Agreement. Advertiser hereby covenants that it shall make reasonable efforts to answer all calls connected to Advertiser, comply with or exceed local standards and regulations, including those regarding the appearance and integrity of its vehicles, and shall not discriminate among end-users on any basis including but not limited to the size of the anticipated fare. Advertiser warrants that: it will provide Company with all information necessary for the Advertising and will do so in a timely manner including a current Advertiser Logo and current digital photo of a representative Advertiser vehicle; that Advertiser will update its Advertiser Logo and digital photo of vehicles upon request or as needed to keep such items current; that all information in Advertising is accurate, not misleading and complies with all laws and licensing requirements; that no Ads violate the rights of any third party; that Advertiser is properly licensed by all applicable governmental authorities to provide the Advertiser Business Offerings; that Advertiser provides complete services to all areas in the applicable Geographic Market; that Advertiser is authorized to be and is engaged in the business of providing the services which Advertiser wishes to advertise; that Advertiser is the sole beneficial owner of the Advertising purchased under this Agreement and has not and will not resell it or any interest in it to any third party; that Advertiser is responsible to contact Advertiser’s local telephone service provider to verify that Advertiser’s telephone service information shown in the Agreement correctly matches the information maintained by Advertiser’s local telephone service provider; and that Advertiser will abide by any and all deadlines established by Company regarding the Advertising. As to Advertising created by Company for Advertiser, Advertiser is responsible to review said Advertising and confirm that it has the right to use and publish any name, address, trade name, trademark, service mark, picture, likeness, logo, reproduction, endorsement, copyrighted or copyrightable item or other content as included in such Advertising. Advertiser warrants that Advertiser will honor any promise, offer or other statement set forth in the Advertising during the entire life of the Advertising, or until an expiration date stated in the Advertising, whichever occurs first.
16. Additional Insured. At Company’s request, Advertiser shall name “1-800-TAXICAB, INC” with address at “PMB 349, 7040 Avenida Encinas, Ste. 104, Carlsbad, CA 92011” as an additional insured on Advertiser’s automobile insurance policy(ies). Advertiser hereby warrants and represents that such coverage will not be canceled or the subject of a material adverse amendment without at least ten (10) days prior written notice to Company. Upon any cancellation and/or material adverse amendment of any Insurance Policy, and prior to the effective date thereof, Advertiser will deliver proof of replacement insurance to Company.
17. Notice. Any notices to Company must be sent via first class or air mail or overnight courier, and are deemed given upon receipt to: 1-800-TAXICAB, INC., 2185 Faraday Ave, Ste. 110, Carlsbad, CA 92008 (the Company “Address of Record”). Notice to Advertiser may be effected via first class or air mail or overnight courier, and are deemed given upon receipt for first class or air mail or overnight courier, or by sending email to the Advertiser’s Email Address, or by posting a message to Advertiser’s Account Interface (if applicable). A party may change its Address of Record by notifying the other party in writing.
18. Modification. Advertiser may grant approvals, permissions and consents by email, but any modifications by Advertiser to this Agreement must be made in a writing (not including email) executed by both parties. Company may change this Agreement at any time. Any changes to the Agreement are effective after notice is provided to Advertiser through email, change notice posted on the Company Property, or through written Notice. If Advertiser does not cancel this Agreement according to the provisions of this Agreement within five (5) days, or makes any payment to Company on or after the effective date of the changes, Advertiser thereby accepts the changes. Advertiser may reject such changes by terminating this Agreement with written notice unless it has already accepted the changes. Except as otherwise provided in this Agreement, this Agreement may not be modified, amended or terminated, nor may any term or provision hereof be waived or discharged, except in writing signed by the party against whom such amendment, modification, termination, waiver or discharge is sought to be enforced.
19. Status of the Parties. Company and Advertiser are not legal partners or agents. Company is an independent vendor on the one hand, and Advertiser is an independent customer on the other hand. This is not a franchise agreement and neither party contemplates any revenue that may result directly or indirectly as a result of this Agreement constituting more than ˝% of the revenue of Advertiser.
20. Construction. If any provision of this Agreement is held to be invalid under the law, the remaining provisions shall be enforceable. Unenforceable provisions will be modified to reflect the parties' intention, and remaining provisions of the Agreement will remain in full effect. This Agreement may be executed in counterparts and by facsimile copies. All executed copies are duplicate originals, equally admissible in evidence. The Agreement must be construed as if both parties jointly wrote it.
21. Miscellaneous. Any claims or causes of action between the parties will be filed in the state courts of California located in San Diego County. This Agreement will be construed in accordance with the laws of the state of California without effect to conflicts of law principles. The parties hereby consent to the personal and exclusive jurisdiction and venue of these courts. Advertiser may not assign or transfer this Agreement without the prior written consent of Company. Company shall not be limited in its ability to assign or otherwise transfer this agreement. Nothing in this Agreement is intended to confer any rights or remedies on any person other than the parties to this Agreement. The failure of Company to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver thereof. Any waiver by Company must be in writing and, unless otherwise stated, shall be strictly limited to the circumstances explicitly waived and shall not deprive Company of the right to insist upon strict adherence to the term waived in any and all other circumstances or to insist upon strict adherence to any other term of this Agreement. A waiver of any default is not a waiver of any subsequent default. This Agreement (including the Company Policies) is the entire agreement between Company and Advertiser concerning the subject matter herein, and supersedes any and all prior agreements between the parties. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. Advertiser will not represent to any third party that Company approves or endorses any product or service of Advertiser. Advertiser will provide and update contact address, telephone numbers, fax numbers and e-mail addresses, if any, to Company upon request. Although Company assigns certain items of Advertising an internally generated Seniority date, such assignments are internal to Company and do not confer any rights upon Advertiser. Company does not guarantee exclusivity in a business category or Geographic Market for any Advertising.