Terms and Conditions

This ADVERTISING CONTRACT (“Contract”) is made as of the Effective Date by and between the Publisher and the Advertiser named on page one of this Contract (“Advertiser”). In consideration of the mutual covenants and agreements contained herein, the Publisher and the Advertiser agree as follows:

1. Duties.

a. Publisher. The Publisher is the authorized, official publisher of MetroSenses™ magazine (the “Publication”). The Publisher shall offer design services at an agreed upon fee, including but not limited to concept creation, layout formatting, copy editing and photography services, in connection with each advertisement and publish such advertisement in the Publication (the “Services”). Additional Services requested by the Advertiser shall be billed as Production Fees, as described below.

b. Advertiser. The Advertiser shall submit all advertising materials to the Publisher by the materials deadline stated in the Distribution and Circulation Insert in the Publisher’s Media Kit, which may be amended from time to time at the Publisher’s sole and absolute discretion (the “Materials Deadline”). The Advertiser must cancel a space reservation before the respective Ad Space Deadline or such cancellation will not be accepted. In the event of cancellation, the Advertiser shall remain liable to the Publisher for any Rates or Production Fees incurred prior to such cancellation.

2. Payment.

a. Rates. The Publisher’s rates per publication of an advertisement are defined on page one of this Contract (the “Rate(s)”). For a one-time publication of an advertisement, the Advertiser shall pay the Publisher in full for the Rate upon the execution of this Contract. For multiple space reservations of an advertisement(s), the first-time Advertiser shall pay the Publisher fifty percent (50%) of the total Contract costs upon execution of this initial Contract; such deposit is non-refundable. The Publisher will invoice the Advertiser for the remainder of such Rates and all invoices shall be due upon receipt. Any space reserved after the Ad Space deadline will be charged an additional ten percent (10%) of the applicable Rate.

b. Discounted Rates. If the parties have negotiated a discounted rate for multiple space reservations of an advertisement(s) (“Discounted Rate(s)”), such discounts must be fulfilled within twelve (12) months. If the Advertiser cancels any of the multiple space reservations to which the Discounted Rate applied, such Discounted Rate shall no longer apply. If the Advertiser utilized the Discounted Rate for previous reserved spaces, the Advertiser shall pay the Publisher the difference between the standard Rate and the earned Rate.

c. Production Fees. Additional fees (“Production Fees”) shall be assessed to the Advertiser for additional production, which includes but is not limited to additional Services, late submission of materials, improperly formatted materials or necessary duplication of materials or conversions.

3. Ownership of Advertising Copy. All work associated with the creation and publication of an advertisement, including but not limited to all intellectual property developed in connection with said advertisement and associated copy and design work, including all drawings, photographs, negatives or digital images or files, renderings, graphics, pictorial and visual representations, illustrations, and graphic displays generated by a Person, a computer or an imaging device (the “Work”) created by or through the Publisher, is and remains the property of the Publisher, including all rights of copyright therein. Advertiser understands and agrees that it may not reproduce or authorize reproduction, in whole or in part, of any part of such Work for use in any other medium without the Publisher’s prior written consent.

4. Advertiser Representations, Warranties, Covenants and Agreements.

a. Accurate Information. Advertiser represents and warrants that all materials submitted to the Publisher constitute works the Advertiser owns or has the right to use, do not violate any law or infringe the copyrights, trademarks, trade names or patents of any other person and contain no matter which is libelous, an invasion of privacy, an unlawful appropriation of any names or likeness or is otherwise injurious to the rights of any other person, and that Advertiser has obtained all necessary consents prior to submission to the Publisher. Advertiser assumes all liability for the content of the advertisements when published. Advertiser acknowledges that Publisher’s ability to perform the Services depends on the accuracy and timeliness of information provided by the Advertiser. As such, Advertiser agrees to provide full, reliable information when requested by Publisher.

b. Authority; Binding Effect. The execution and delivery of, and the performance by the Advertiser of its obligations under this Contract have been duly and validly authorized by all necessary action on the part of the Advertiser. The Advertiser has all requisite power and authority to enter into this Contract and to carry out the trans-actions contemplated hereby. This Contract is a valid and binding agreement of the Advertiser, enforceable against it in accordance with the terms and provisions hereof.

c. No Conflicts. The Advertiser hereby represents and warrants that neither the execution and delivery by the Advertiser of this Contract, nor the performance of the Advertiser’s duties and obligations under this Contract, nor the consummation of the transactions contemplated by this Contract, nor the compliance by the Advertiser with the terms and provisions of this Contract will conflict with, or result in any breach of, or cause a default (with or without notice or lapse of time or both) under any term or provision of any contract (including any contractor agreement, employment agreement, consulting agreement, non-compete agreement, confidentiality agreement or similar agreement with any other Person) or order to which the Advertiser is a party or by which the Advertiser is bound. “Person” shall be construed as broadly as possible and shall include an individual or natural person, a trust, a corporation, a limited liability company, a partnership (including a general partnership, a limited partnership and a limited liability partnership), a joint venture, a joint stock company, a business, an association, an unincorporated organization, a governmental authority or any other entity.

5. Termination. Anything in this Contract to the contrary notwithstanding, either party may terminate this Contract for any reason by providing the other party with at least thirty (30) days written notice, which termination shall be effective as of the date set forth in such notice. The Publisher may immediately terminate this Contract as a result of nonpayment of any Rates and/or Production Fees due to the Publisher under this Contract, if Advertiser provides inaccurate information to the Publisher or if Advertiser fails to provide information to Publisher within the time frame specified by Publisher. Upon termination of this Contract by either party, the Advertiser shall immediately pay the Publisher all outstanding Rates and/or Production Fees due under this Contract.

6. Notices. All notices, demands, requests, payments or other communications delivered pursuant to the terms and conditions of this Contract or any applicable law shall be in writing and shall be deemed to be sufficient if (i) delivered personally, (ii) mailed by registered or certified mail, return receipt requested, postage prepaid, (iii) sent by facsimile, telecopy or other electronic transmission device, or (iv) sent by a nationally-recognized, overnight courier, to the parties at the addresses listed on page one of the Contract (or at such other address for a party as shall be specified by a written notice satisfying the requirements of this Section 6). All such notices, demands, requests, payments and other communications shall be deemed to have been given and received (i) in the case of personal delivery, on the date of such delivery, (ii) in the case of delivery by registered or certified mail, on the third (3rd) Business Day following such mailing, (iii) in the case of delivery by facsimile, telecopy or other electronic transmission device, on the date of such delivery (if sent on a Business Day, or if not sent on a Business Day, then on the next Business Day after the day sent), and (iv) in the case of delivery by a nationally-recognized, overnight courier guaranteeing next Business Day delivery, on the Business Day following dispatch. “Business Day” means any day that is not a Saturday, Sunday or a day on which banking institutions located in Jacksonville, Florida are authorized or required to be closed.

7. Limitation of Liability. Publisher’s total liability for any and all claims, whether in contract, tort (including negligence), statute or otherwise, shall not exceed the amount actually paid by Advertiser to Publisher for the particular publication of the advertisement that is the subject of the claim. To the fullest extent permitted by law, the Publisher shall not be liable under contract, tort (including negligence), statute or otherwise for any special, incidental, exemplary, punitive, indirect or consequential damages of any kind, including, but not limited to lost profits or lost goodwill, arising out of or in connection with this Contract, even if the Publisher was advised of the possibility of such claim or if the claim was foreseeable. Prior to seeking legal recourse for any claim, Advertiser shall give the Publisher at least thirty (30) days’ written notice prior to initiating any legal claim. Publisher shall not be responsible, or held liable by the Advertiser, for any delays due to any event beyond the Publisher’s control, including Force Majeure, as defined below, or a delay or default of any third party.

8. Disclaimer. The Publisher shall not be responsible for errors in any published advertising materials due to errors in ad copy or artwork furnished by the Advertiser. Should an error exist in an advertisement, the Advertiser must notify the Publisher of the same within ten (10) days of the first publication of the error. The Publisher reserves the right to reject any advertisement based on its content. In the event the Publisher rejects an advertisement, the Advertiser must provide a new advertisement before the Materials Deadline or the Publisher shall not be obligated to publish an advertisement for the Advertiser.

9. Default. All invoices that remain unpaid after thirty (30) days of receipt by the Advertiser shall accrue interest at a rate of one and one-half percent (1.5%) per month, or the maximum rate allowed by law, and all Costs of Collection, as defined below, shall be borne by the Advertiser. “Costs of Collection” shall include, but are not limited to, all attorneys’ fees, paralegals’ fees, costs, expenses, costs charged by a collection agency, service fees and service charges incurred at any stage of the proceeding, including trial, appeal, and bankruptcy, including the investigation stage. There will be a charge for returned checks for any reason; such amount calculated pursuant to Florida Statutes Section 68.065(3) or any other applicable law.

10. Indemnification. To the extent permitted by law, Advertiser shall indemnify, defend, and hold the Publisher, its affiliates and their respective directors, employees, agents, and assigns harmless (collectively, the “Publisher Indemnified Parties”) from and against, and reimburse the Publisher for, any and all claims (collectively, the “Claims”) which arise out of this Contract unless caused by the Publisher’s intentional misconduct or gross negligence. Advertiser shall pay any and all expenses associated the Claims, in advance, including but not limited to, tax consequences, investigative costs, attorneys’ fees, paralegals’ fees, expenses, settlement, damages, judgments, fines, reasonable reimbursement for time spent as a witness or a party, and any other damage or expense suffered by the Publisher Indemnified Parties as a result of the Claims (collectively, the “Costs”). The Publisher Indemnified Parties have the right to control the handling of the Claims including the right to select its own attorney and defend in any manner it determines; provided, however, that such right shall in no way limit Advertiser’s obligation to pay for all Costs associated with the Claims, in advance, and provided further that nothing herein shall be construed to limit the right and obligation of the Advertiser to work with the Publisher Indemnified Parties to handle the defense of any claim filed by a third party. Advertiser agrees it shall not seek to obtain a money judgment against the Publisher or its affiliates and shall defend the Publisher and any affiliates therefrom. The indemnity requirements and exculpation shall survive the termination of the Contract.

11. Dispute Resolution. If a dispute arises out of or is related to this Contract, the party asserting the dispute shall provide written notice thereof. The parties involved in such dispute shall attempt to resolve such dispute by mediation under the then current Model Procedure for Mediation of Business Disputes of the Center for Public Resources, Inc. (“CPR”). The mediation shall take place in Jacksonville, Florida. If the parties impasse at mediation or if the dispute is unresolved sixty (60) days after the written notice of dispute, the parties may pursue all available remedies, whether at law or equity. The parties involved in dispute resolution efforts as provided in this section shall bear their respective Litigation Expenses, as defined below, except that the parties involved in such dispute resolution procedures shall share equally the costs and expenses of any neutral third party and the costs and expenses of any facility used in connection with such dispute resolution procedures. All negotiations arising out of, connected to, related to or incidental to any non-litigated procedures provided in this Contract are confidential and shall be treated as compromise and settlement negotiations for purposes of the rules of evidence of all applicable jurisdictions.

12. Governing Law, Jurisdiction; Venue and WAIVER OF JURY TRIAL. This Contract has been executed and delivered in the State of Florida. This Contract and all related causes of action shall be interpreted under and in accordance with the laws of the State of Florida, without regard to its conflicts of law provisions. Any disputes shall be heard before the state or federal courts located in Duval County, Florida. THE PARTIES HEREBY WAIVE ANY AND ALL RIGHTS TO JURY TRIAL.

13. Litigation Expenses. Except as otherwise expressly provided in this Contract, the prevailing party in any action, suit, investigation or proceeding (including an audit) before any governmental authority, arbitrator or mediator (“Proceeding”) brought to enforce the terms and conditions contained in this Contract shall be entitled to an award of any and all out-of-pocket costs and expenses incurred in connection with investigating, defending, asserting, mediating or arbitrating any dispute, claim or Proceeding, including court filing fees, court costs, mediation fees and costs, arbitration fees and costs, travel expenses, witness fees, and reasonable fees and disbursements of outside legal counsel, investigators, expert witnesses, accountants and other professionals (“Litigation Expenses”) incurred by such prevailing party arising out of, connected with, related to or incidental to such Proceeding, which award of Litigation Expenses shall be in addition to any other remedy awarded in such Proceeding.

14. Independent Contractor Relationship. It is the intent of the parties that the Publisher shall be an independent contractor with respect to the Advertiser. This Contract shall not render the Publisher an employee, partner, agent of, or joint venturer with the Advertiser for any purpose. As an independent contractor, the Publisher retains sole and absolute discretion and judgment in the manner and means of carrying out the Publisher’s Services under this Contract. The Publisher is under the control of the Advertiser only as to the result of the Publisher’s work and the Advertiser has no right to control the means by which the Publisher performs such services. The Advertiser acknowledges the accuracy of the foregoing statements.

15. Force Majeure. Publisher shall not be responsible to the Advertiser to the extent it is prevented from performance of any of its obligations under this Contract by causes beyond its control such as acts of God, acts of terrorism, labor disputes, floods, civil commotion, war, riot, fires, embargoes, bank holidays, actions of governmental authorities or other act of nature or circumstance out of its control (“Force Majeure”).

16. Independence of Representations, Warranties, Covenants and Agreements. All representations and warranties contained in this Contract shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached shall not affect the incorrectness of or the breach of such initial representation or warranty. In addition, all covenants and agreements contained in this Contract shall be given independent effect so that if a certain action or condition constitutes a breach of or default under a certain covenant or agreement, the fact that such action or condition is permitted by another covenant or agreement shall not affect the occurrence of such breach or default, unless expressly permitted under an exception to such initial covenant or agreement.

17. Mutual Contribution. The parties and/or their respective counsel have contributed mutually to the drafting of this Contract. Consequently, no term or provision of this Contract shall be construed against any party on the ground that a party drafted the term or provision or caused the term or provision to be drafted.

18. Severability. It is the desire and intent of the parties that the terms and conditions of this Contract be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, in the event that any term or provision of this Contract would be held in any jurisdiction to be invalid, prohibited or unenforceable for any reason, such term or provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining terms and provisions of this Contract or affecting the validity or enforceability of such term or provision in any other jurisdiction. Anything contained in the immediately preceding sentence to the contrary notwithstanding, if such term or condition could be drawn more narrowly so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall be so narrowly drawn, as to such jurisdiction, without invalidating the remaining terms and conditions of this Contract or affecting the validity or enforceability of such term or condition in any other jurisdiction.

19. Third-Party Beneficiary. Nothing contained in this Contract shall create a contractual relationship with or a cause of action in favor of a third party against either the Advertiser or Publisher.

20. Benefits of Agreement; Assignment. All of the terms and conditions of this Contract shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assignees, personal representatives, heirs, estates, executors and affiliates, as applicable. Except as otherwise expressly provided in this Contract, this Contract shall not confer any rights or remedies upon any Person other than the Persons referred to in the immediately preceding sentence. This Contract shall not be assignable by any party without the prior written consent of the other party, except that the Publisher may assign this Contract or its rights, duties and obligations hereunder to any Person succeeding to all or any substantial portion of its business.

21. Entire Agreement; Amendments; Waiver. This Contract represents the entire Contract between Advertiser and Publisher. This Contract may be amended only in writing and if signed by both Advertiser and Publisher. Waiver by one party hereto of breach of any provision of this Contract by the other shall not operate or be construed as a continuing waiver.