[***] CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF
THE SECURITIES ACT OF 1933, AS AMENDED.


 


Exhibit 10.42


 


ADVERTISING
AGREEMENT


 


This Advertising Agreement (the “Agreement”), effective as of December 10,
2004, is made and entered into by and between MyAgreeGuide.Com, Inc. a
Nevada corporation with its principal
place of business located at 1240 East 100 South, Suite 5, St. George,
Utah 84790 (“Company”) and Six Continents Hotels, Inc., a Delaware
corporation with its principal place of business located at Three Ravinia
Drive, Suite 100, Atlanta, Georgia 30346-2149 (“SCH”), pursuant to the
following recitals and clauses;


 


WHEREAS, SCH owns several hotel brands and owns, manages, and
franchises hotels using those brand names internationally (“IHG”);


 


WHEREAS, Company desires to assist SCH in the marketing of its hotel
brands by providing specified services upon the terms and conditions set forth
herein;


 


NOW, THEREFORE, in consideration of the mutual promises contained
herein and for good and valuable
consideration, the parties agree as follows:


 


1.                         Services. Company has the ability to provide the
comprehensive services described in this Agreement. In accordance with the
terms and conditions of this Agreement, Company shall provide SCH with services
and SCH shall compensate Company for the services, as described in Exhibit “A,”
which is attached hereto and incorporated herein as if fully rewritten herein
(the “Services”). Any additional standard Company terms shall be attached
hereto in Exhibit “B”. In the event of a conflict in the provisions of
this Agreement and any Exhibits, this Agreement shall prevail. Any new programs
or services to be added to this Agreement shall be added as an Exhibit to
this Agreement and shall be in the same form as Exhibit “A”. Such Exhibit shall be in writing
signed by Company and SCH and shall incorporate the terms of this Agreement.


 


2.                         Engagement and Authorization to Use Third Parties. Company
is retained and appointed by SCH to develop, perform and carry out the
services set forth and described in this Agreement. In order to perform the
services, Company is authorized to enter into such third party contracts as may be
reasonably necessary to carry out the purposes of this Agreement. Except as
specifically set forth herein to the contrary, Company shall be liable to all
third parties employed by the company.


 


3.                         Warranty. Company warrants that the purchased services will
be original, will conform to stated specifications, will comply with
descriptions in Company’s sales materials and brochures, will match Company’s
samples, will conform to all applicable codes and standards, and will
fulfill all prior representations by Company, its employees and agents. Company
warrants that it has obtained appropriate releases granting SCH complete and
unrestricted rights (unless otherwise specified in writing and attached to this
Agreement) to use the services provided. The above warranty shall be for the
benefit of SCH, its affiliates, successor and assigns. If Company’s standard
warranty provides longer or better protection than the above warranty, then the
Company’s standard warranty shall apply. The inspection or acceptance of
services shall not be a waiver of rights under this warranty. This warranty
shall survive delivery and acceptance of the purchased services.


 

















 


4.                         Audit. Company shall keep, maintain and preserve at its
principal place of business for at least two (2) years following
termination or expiration of the term of this Agreement or any renewal(s)
hereof, complete and accurate records of accounts related to services under
this Agreement. Such records and accounts shall be available for inspection and
audit at any time or times during or after the term of this Agreement or any
renewal(s) hereof at the sole expense of SCH during reasonable hours upon
notice by SCH or its designees. Company agrees to cooperate with SCH or
designees of SCH in the performance of its duties of inspection and audit.


 


5.                         No Partnership. This Agreement does not constitute and shall
not be construed as constituting a partnership or joint venture between Company
and SCH. Neither party shall have the right to obligate or bind the other party
in any manner whatsoever. Nothing herein contained shall give, or is intended
to give, any rights of any kind to any third persons.


 


6.                         Assignment. Any assignment or transfer of this Agreement, in
whole or in part, or of any interest herein, without SCH’s prior written
consent shall be void. SCH may assign this Agreement to a parent,
subsidiary, or affiliate corporation.


 


7.                         Ownership of Intellectual Property. All advertising and
marketing content provided by SCH and the component parts thereof, including
without limitation, all ideas, plans, copy, slogans, creative concepts, videos,
research, photographs, advertisements, commercials, musical compositions or other materials submitted, created,
developed or supplied by SCH (the “Works”) shall be and remain SCH’s sole and
exclusive property and shall be dealt with by Company as such. Company shall
sign or cause to be signed such further documents as SCH may from time to
time request to evidence this fact.


 


8.                         Use of Trademarks. Company shall have no right to use any of
SCH’s intellectual property, including without limitation, trademarks, service
marks, or copyrights of SCH or any of its subsidiaries or affiliates, except
with the prior written approval of SCH. Company acquires no rights in any
intellectual property, including without limitation, any trademarks, service
marks or copyrights of SCH, its subsidiaries or affiliates. All usage shall
inure to the benefit of SCH.


 


9.                         Internet Keyword Marketing - Company shall not purchase or
sell placement rights for any of the Marks for Internet keyword marketing
purposes.


 


10.                   Brand Loyal Marketing - Except as specifically permitted by
this Agreement, Company shall not target, solicit, or otherwise make use of any
date to seek business from, or offer business to,  IHG-brand loyal customers (i.e., customers
who have expressed a preference for an IHG brand).


 


11.                   Predatory Advertising - Company shall not use, and shall
prohibit all web sites within its control from using, any predatory advertising
methods designed to generate traffic
from IHG sites, or any other sites that exclusively promote IHG brands, for
which Company has no contractual rights for the online promotion of any
products or services other than IHG hotels. A predatory advertising method is
an advertising method that creates or overlays links or banners on web sites,
spawns browser windows, or utilizes any other method to generate traffic from a
web site without that web site owner’s knowledge, permission, and
participation.


 

















 


12.                   Term. This Agreement shall become effective and shall
terminate on the dates stated in Exhibit A. Termination of this Agreement
shall not extinguish the rights or obligations of the parties hereunder with
respect to indemnification, ownership and disposition of information,
confidentiality, and accounting.


 


13.                   Termination for Cause and Default. If Company fails to
comply with any provision under this Agreement, SCH may terminate this
Agreement. In order to terminate this Agreement, SCH must give Company written notice
at the breach and thirty (30)
days to cure such breach. If Company fails to cure the breach within the period
set forth immediately above or the breach cannot be cured, this Agreement shall
be deemed terminated on the business day after the expiration of the period set
forth above.


 


14.                   Company Indemnity. Company will indemnify and hold harmless
SCH, its parents, divisions, subsidiaries, licensees, and affiliates, and their
officers, directors, employees, agents, successors and assigns (collectively, “Indemnified
Parties” and each of the foregoing being hereinafter referred to individually
as “Indemnified Party”), against, and hold them harmless from, all liability to
third parties and promptly reimburse them for all costs and expenses (including,
without limitation, all settlements, judgments, fines, damages, reasonable
legal fees, court costs, expert fees, etc.) by reason of any claim, demand, tax,
penalty or judicial or administrative proceeding or investigation (even where
negligence of the Indemnified Party it also alleged) arising from or in
connection with:


 


A.                      any
act omission or obligation of the Company, its parent, subsidiaries, licensees,
affiliates, subcontractors, and suppliers and their respective officers,
directors, employees, agents or successors or assigns (“Company”);


 


B.                        any
service provided by the Company;


 


C.                        any
failure to perform or breach of this Agreement by the Company;


 


D.                       any
injury or death to persons or damage to property, sustained by any person that
is a result of the alleged acts or omissions of the Company, including theft;


 


E.                         any
and all claims alleging violation of Company’s Privacy Policy or misuse or
Personal information of any customer or guest, or prospective customer or
guest;


 


F.                         any
violation or claimed violations of any third party’s trade secrets, proprietary
information, trademarks, copyrights, patent rights, or other Intellectual
property rights;


 


G.                        Company’s
failure to perform all obligations owed to Company’s employees, including
any claim that employees of Company might have or make for privilege,
compensation, or benefits under any employee benefit plan: and


 


H.                       any
and all sums due and owing to the Internal Revenue Service (IRS) for
withholding, FICA, unemployment, or any other state or federal taxes. Company
further agrees to timely make such withholdings, deposits, and payments to the
IRS and appropriate state authorities for all employment related taxes
withholding, FICA, and other taxes.


 

















 


In any event, SCH will have the right, through counsel of its choice
and at Company’s expense, to conduct or participate in the defense and to
control any matter to the extent it could directly or indirectly affect SCH.
Company shall cooperate with such defense to the fullest extent possible.
Company will also reimburse SCH for all payments of money (including without
limitation, all costs, expenses, fines, damages, legal fees, court costs, settlements, judgments,
etc.) incurred by SCH to defend and protect itself from, or to remedy, defaults
of Company under this Agreement.


 


15.                   SCH Indemnity. SCH will indemnify and hold harmless the
Company, its parents, divisions, subsidiaries, licensees, and affiliates, and
their officers, directors, employees, agents, successors and assigns
(collectively, “Indemnified Company Parties” and each of the foregoing being
hereinafter referred to individually as “Indemnified Company Party”), against,
and hold them harmless from, all liability to third parties and promptly
reimburse them for all costs and expenses (including, without limitation, all
settlements, judgments, fines, damages, reasonable legal fees, court costs,
expert fees, etc.) by reason of any claim, demand, tax, penalty or judicial or
administrative proceeding or Investigation (even where negligence of the
Indemnified Company Party is also alleged) arising from or in connection with:


 


A.                      any
failure to perform or breach of this Agreement by SCH;


 


B.                        any
and all claims of SCH alleging violation of SCH’s Privacy Policy or misuse or
Personal Information of any customer or guest, or prospective customer or
guest;


 


C.                        any
violation or claimed violations of any third party’s trade secrets, proprietary
information, trademarks, copyrights, patent rights, or other Intellectual
property rights by SCH:


 


In any event, under this Indemnity agreement the Company will have the
right, through counsel of its choice and at SCH’s expense, to conduct or
participate in the defense and to control any matter to the extent it could
directly or indirectly affect the Company. SCH shall cooperate with such
defense to the fullest extent possible, SCH will also reimburse the Company for
all payments of money (Including without limitation, all costs, expenses,
fines, damages, legal fees, court costs, settlements, judgments, etc.) incurred
by the Company to defend and protect itself from, or to remedy, defaults of SCH
under this Agreement.


 


This Indemnity provision shall survive the expiration or termination of
this Agreement by either party for any reason.


 


16.                   Limitation of Liability. Company understands that most
participating hotels are independently owned by franchisees in the SCH system
of hotels and that SCH does not control the day-to-day operations of franchised
hotels. Company understands and agrees that the sole remedy available against
SCH for failure by such franchisees to abide by their obligations shall be
notification to the participating hotel that it may no longer participate
in the activities contemplated by this Agreement. This shall not however,
effect the ability of the Company to pursue damages against any Individual
hotel owner in the event such occurs.


 


17.                   Confidentiality. In addition to, and not in lieu of, any
Confidentiality Agreement the parties may have executed, each party agrees
to keep confidential all data and other information that is designated as
confidential. Information that is designated as confidential includes,


 

















 


without limitation, the following: (a) business,
strategic development, financial, and marketing plans of both parties; (b) any
information related to any SCH guest or employee, customer lists, sales plans,
research, and market share Information; (c) any Information designated,
orally or in writing, by either party as Confidential (hereinafter, “Confidential
Information”).


 


Each party agrees not to use, sell or otherwise make Confidential
Information available to any third parties. Each party shall restrict all
Confidential information to employees or agents on a “need to know” basis,
shall inform employees and agents of the confidentiality requirement, and shall
take reasonable precautions to prevent any disclosures. For information that
meets the applicable definition of a trade secret and retains trade secret
status under applicable law, this obligation shall survive the termination of
this Agreement. For all other Confidential Information, this obligation shall
survive the termination of this Agreement for a period of two (2) years.


 


Company shall not use, sell, loan, rent, barter, transfer, or otherwise
enter into any transaction regarding any personally-identifiable information
related or relatable to any IHG hotel customer, IHG hotel guest, Priority Club®
Rewards member, or Six Continents Club® member, derived from such
customer’s, guest’s, or member’s use, purchase, or viewing of any goods or
services offered or provided to any such customer or guest or prospective
customer or guest by way of this Agreement (“Customer”), to any third party,
except as such Customer may agree in advance in writing or by “check-box”
approval on-line, with respect to such Customer’s personally-identifiable
information. Company shall keep and maintain any records relating to such
approvals for a period of no less than one year following the expiration of the
term hereof.


 


Company shall defend and indemnify SCH against all losses (including
legal costs) that SCH may incur by reason of any breach of this Section or
any breach by SCH of any applicable data protection and privacy laws and
regulations that is caused by Company.


 


18.                   Data Ownership, Collection and Access. SCH shall own all
Personal Date collected by Company and Company’s agents, subcontractors,
employees and contractual parties in the performance of this Agreement, or as
otherwise acquired by Customer.


 


Personal Date may be disclosed to Company to perform a
specific task under this Agreement. Company will use the data only to perform such
task. Company shall ensure that the data is not used for any other purpose not
specifically requested in writing by Customer. Company shall ensure that
Personal Data is safely secured.


 


Company shall co-operate with SCH in complying with the exercise by SCH
of rights with regard to Personal Data processed by Vendor under this Agreement
and with any actions of data protection authorities.


 


Company shall identify to SCH an individual within your organization to
act as point of contact for any Inquiries from SCH or data protection
authorities relating to Personal Data.


 


Company shall cause the Personal Data disclosed to Company to be
removed from all records after the specific task to which it relates under this
Agreement has been performed or to be corrected or removed upon request.


 

















 


19.                   Notices.


 


A.                      Notices
of default and termination as well as any other notices, demands and other
communications contemplated by this Agreement shall be addressed as follows:


 


To SCH at:


 


Six Continents Hotels, Inc.

Three Ravinia Drive, Suite 100

Atlanta, Georgia 30346-2149

Attention: Marketing Services

E-mail Address:
                                 

With a copy to the Legal Department

Fax number: 770-604-8442


 


To Company at:


 


MyAreaGuide.com, Inc.

1240 East 100 South, Suite5

St. George, Utah 84790

Attention: Dustin Moore, Vice-President Operations

E-mail address:  


 


With a copy to:

Barry E. Clarkson, Esq.

CLARKSON & DRAPER, LLC

1240 East 100 South, Suite 222

St. George, Utah 84790


 


B.                        All
notices of default and termination must be hand-delivered with proof of
receipt; sent by certified or
registered mail, return receipt requested; or sent by overnight courier, with
proof of receipt; and shall be deemed given as of the date the receipt is
signed. Notwithstanding the foregoing, notices of default and termination if
being sent to Company may be e-mailed at the address above and shall be
deemed given as of the date a response
is received by SCH that the notice was received and opened.


 


C.                        All
other notices, demands or communications may be sent by regular mail,
postage prepaid, or by facsimile or e-mail (with evidence of completed
transmission).


 


20.                   Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.


 


21.                   Compliance with Law. Each party hereto shall, at its own
expense, comply with all applicable federal, state, county and local laws,
ordinances, regulations and codes in the performance of this Agreement.


 


22.                   Entire Agreement. This Agreement, together with the terms
and conditions set forth in the Exhibits hereto, comprises the entire
understanding of the parties and supersedes and


 

















 


cancels any previous oral or written agreements
between the parties with respect to the subject matter hereof. Further, any and
all prior representations or agreements by any agent or representative of
either party shall be null and void. Any waiver, modification or amendment to
this Agreement must be in writing and signed by officers of both parties. Any
attempted waiver, modification or amendment not in writing and signed by
officers of both parties shall be null and void.


 


IN WITNESS WHEREOF, the parties have executed this Agreement, effective
as of the day and year first written above.


 


	
  MYAREAGUIDE.COM, INC.

  	
   

  	
  SIX
  CONTINENTS HOTELS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Dustin Moore

  	
   

  	
   

  	
  By:

  	
  /s/ Chris
  Copp

  	
   

  
	
  Name:

  	
  Dustin
  Moore

  	
   

  	
   

  	
  Name:

  	
  Chris
  Copp

  	
   

  
	
  Title:

  	
  VP

  	
   

  	
   

  	
  Title:

  	
  [ILLEGIBLE]

  	
   

  
	
  Date:

  	
  12/09/04

  	
   

  	
   

  	
  Date:

  	
  12/14/04

  	
   

  
													



 

















 


EXHIBIT “A”


 


MYAREAGUIDE.COM NETWORK ADVERTISING
AGREEMENT


 


Six Continents Hotels, Inc. 

MyAreaguide Salesperson: Dustin Moore 

Date: November, 2004


 




	
  Total US

  	
   

  	
  ADVERTISER

  	
   

  	
  ADVERTISER AGENCY

  
	
  Contact Person

  	
   

  	
  Missie Smith

  	
   

  	
   

  
	
  Company Name

  	
   

  	
  InterContinental Hotels
  Group

  	
   

  	
   

  
	
  Address-Line 1

  	
   

  	
  Three Ravinia Drive,
  Atlanta GA

  30346

  	
   

  	
   

  
	
  Phone #

  	
   

  	
  770.604.2091

  	
   

  	
   

  
	
  Fax #

  	
   

  	
  770.604.6636

  	
   

  	
   

  
	
  Email

  	
   

  	
  missie.smith@lchotelsgroup.com

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Billing
  Information

  
	
  Send Invoices To
  (choose one)

  	
   

  	
  o
  Advertiser

  	
   

  	
  o
  Agency

  
	
  Advertiser or Agency
  Billing Contact Person

  	
   

  	
  Chris Copp

  	
   

  	
   

  
	
  Company Name

  	
   

  	
  InterContinental Hotels
  Group

  	
   

  	
   

  
	
  Billing Address

  	
   

  	
  Three Ravinia Drive,
  Atlanta GA

  30346

  	
   

  	
   

  
	
  Billing Phone #

  	
   

  	
  770.604.5457

  	
   

  	
   

  
	
  Billing Fax #

  	
   

  	
  770.604.5636

  	
   

  	
   

  
	
  Billing Email Address

  	
   

  	
  chris.copp@lchotelsgroup.com

  	
   

  	
   

  






 


Billing
Schedule (select one)


o If total
payment due to less than or equal to $5,000 and the advertiser is [ILLEGIBLE]
to MyAreaguide.com Network, payment is due upon signing and must be received by
MyAreaguide Network prior to start date.


 


Invoices will be due
monthly commencing on the start date, due net 30 after advertiser’s receipt.


 


Payment
Information


o Send Checks to:
MyAreaguide.com, Inc.


Attn:
Accounts Receivable


1240 E
100 S, #5


St.
George, Utah 84790


 


o If payment due
is greater than or equal to $80,000 please wire funds to Melton Bank,
Pittsburg, ABA:  04300261. Credit to
Merrill Lynch [ILLEGIBLE]: 101-1730 for further credit to Account #415-07158. MyAreaguide.com, Inc.


 


In the event of nonpayment, MyAreaguide.com reserves the right to
immediately terminate this Advertising Agreement with written notice to
Advertiser.


 

















 


Advertising
Inventory


 


	
  Inventory Purchased

  	
   

  	
  Start

  Date

  	
   

  	
  Stop

  Date

  	
   

  	
  Ad

  Type

  	
   

  	
  Placement &

  Category

  	
   

  	
  Cost of 

  Banner

  	
   

  	
  Total 

  Price

  	
   

  	
  Total 

  Clicks

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US Apartment Inventory by City. (1) Advertiser
  will provide MAG with an FTP of [ILLEGIBLE] feed of detailed information for
  Intercontinental Hotel Listings (“Advertiser Content” or “Listings”) for all
  properties.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2) Listings included in Advertiser Content
  will include a thumbnail photo url, map link, detailed information, hotel rating,
  city, state, pictures, amenities, hotel information, hotel overview, address
  of hotel, hotel [ILLEGIBLE] for availability search, photos, points of
  interest, policy information, room information.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3) MyAreaGuide.com shall populate the hotels
  database acceptable through the MAG site with the Listings. All such search
  functionality on the MAG Sites shall be hosted and maintained by MyAreaGuide.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4) Clicking on a Listing, property thumbnail
  photo, availability search or a MAG Site hotel search results page will
  send visitors to Advertiser’s Intercontinental individual property.

  	
   

  	
  12/20/04

  	
   

  	
  2/20/05

  	
   

  	
  Link

  	
   

  	
  Hotels

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  



 


Purchase
Summary


 


	
  Myareaguide.com Network

  	
   

  	
  Total Price

  	
   

  	
  Total Clicks Purchased

  	
   

  	
  CPC

  
	
  Entire Network for
  Hotels

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
   

  	
  [***]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Net Purchase Price

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
   

  	
  [***]

  



 


In the event guaranteed impressions or clicks are reached prior to the
Stop Date, MyAreaguide may, at its option, discontinue banner or link at such
earlier time. Any guarantees are to impressions or clicks (as measured by
MyAreaguide.com in accordance with its counting methodologies). To the extent
that there is a shortfall in impressions or clicks as of the end of the specified banner period,
Myareaguide.com will provide, as Advertiser’s sole remedy, “make good”
impressions or clicks through comparable placements. To the extent impressions
or clicks commitments are identified
without regard to specific placements, such placements will be as mutually
agreed upon by MyAreaguide.com and Advertiser during the course of the display
period. Myareaguide.com reserves the right to alter Advertiser start dates to
accommodate trafficking needs or other operational needs. In such cases,
MyAreaguide.com will make available to Advertiser reasonably equivalent start
date(s) and extend the Stop Dates.


 


Terms and Conditions


 

















 


EXHIBIT “B”


 


STANDARD TERMS AND
CONDITIONS


 


MyAreaGuide.com, Inc. shall be hereinafter referred to as “MAG” and Six
Continents Hotels, Inc. shall be hereinafter referred to as “Advertiser”.


 


The following Standard Terms and Conditions (the “Standard Terms”)
shall be deemed to be incorporated into the attached Advertising Agreement (the
“Advertising Agreement”) dated December 9, 2004.


 


1. Terms of Payment. Advertisor will
be invoiced on the first day of the contract period set forth on the
Advertising Agreement and Payment shall be made to MAG within thirty (30) days
from the receipt of invoice (“Due Date”). Amounts paid after the Due Date shall
bear interest at the rate of one percent (11⁄2%) per month (or the highest rate
permitted by law, if less). In the event Advertiser fails to make timely
payment, Advertiser will be responsible for all reasonable expenses (including attorneys'
fees) incurred by MAG in collecting such amounts. MAG reserves the right to
suspend performance of its obligations (or under any other agreement with
Advertisor) in the event Advertiser fails to make timely payment hereunder or
under any other agreement with MAG.


 


2. Positioning. Except as otherwise
expressly provided in the Advertising Agreement, positioning of advertisements
within the MAG properties or on any page is at the sole discretion of MAG.


 


3. Right to Reject Advertisement. MAG
reserves the right to reject Advertiser Content that is not consistent with MAG’s
standards from time to time in effect with reasonable notice to Advertisor. In
addition, MAG shall have the right, at any time with reasonable notice to
Advertisor, to remove any Advertiser Content and/or to terminate this Agreement
if MAG directed to do so by any law enforcement agency, court or government agency
or if MAG determines, in its sole discretion, that the Advertiser Content,
Promotional Displays, or any portion of such display thereof (i) violate
MAG’s then applicable advertising policy; (ii) violate any law, rule or
regulation; (iii) are the subject of a claim asserted by an entity with
respect to trademarks, trade secret, service marks or other proprietary rights
or (iv) are otherwise objectionable to MAG.


 


4. Renewal. Except as expressly set
forth in the Advertising Agreement, any renewal of the Advertising Agreement
and acceptance of any additional advertising order shall be at MAG’s and
Advertiser’s sole discretion. Pricing for any renewal period is subject to
change by MAG from time to time.


 


5. No Assignment or Resale of Ad Space.
Neither Advertiser nor MAG may resell, assign or transfer any of its rights
hereunder except to an affiliate, subsidiary or parent corporation, without the
prior, express written consent of the non-assigning party, and any attempt to
resell, assign or transfer such rights shall result in an immediate right to
terminate this Agreement, at the non-assigning party’s sole discretion without
liability to that party.


 


6. LIMITATION  OF  LIABILITY. UNDER NO CIRCUMSTANCES SHALL MAG AND/OR
THE DISTRIBUTION AFFILIATES AND/OR ADVERTISER BE LIABLE TO THE OTHER FOR
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH
DAMAGES ARE FORSEEABLE, AND WHETHER OR NOT MAG OR ADVERTISER HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE ADVERTISING
RELATIONSHIP PROVIDED FOR HEREIN, EXCEPT FOR INDEMNIFICATION OBLIGATIONS, BREACHES
OF CONFIDENTIALITY OBLIGATIONS, ACTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
MAG AND ADVERTISER SHALL IN NO EVENT BE LIABLE TO THE OTHER FOR MORE
THAN THE TOTAL AMOUNT OF ADVERTISING FEES PAID OR PAYABLE TO MAG HEREUNDER. MAG
MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, REGARDING MAG’S SERVICES OR ANY PORTION THEREOF, INCLUDING
BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALINGS AND
COURSE OF PERFORMANCE. WITHOUT LIMITING THIS GENERALITY OF THE FOREGOING, MAG
SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE NUMBER OF PERSONS WHO WILL
ACCESS THE PROMOTIONAL DISPLAYS AND ANY BENEFIT ADVERTISER OR AGENCY MIGHT
OBTAIN FROM INCLUDING THE PROMOTIONAL DISPLAYS BY MAG.


 


7. Warranties by Advertiser:
Advertiser represents and warrants that (i) Advertiser holds the necessary
rights to grant the rights to MAG granted herein to use the Advertiser Content
and display of the same in Promotional Displays for the purpose of this
Agreement; (ii) the use, reproduction, distribution, or transmission of
Advertiser Content and the display of Promotional Displays will not violate any
civil or criminal laws, rules or regulations or any rights of any third
parties including but not limited to such violations as infringement or misappropriation
of any copyright, patent, trademark, trade secret, music image, or other proprietary
or property right, false advertising, unfair competition, defamation, invasion
of privacy or rights of celebrity, violation of any anti-discrimination law or
regulation, or any other right of any person or entity; (iii) neither the
Advertiser Content nor its use in promotional displays shall advertise or
enable the unlawful sale of alcohol, tobacco, or firearm products of any
unlawful gambling activity or lottery; and (iv) the Advertiser Content
complies with all applicable laws, rules and regulations.


 


8. Advertisers Representations:  Indemnification. Advertisements are accepted upon the
representation that Advertiser has the right to publish the contents of the
advertisement without infringing the rights of any third party and without
violating any law. In consideration of such publication, Advertiser agrees, at
its own expense, to indemnify, defend and hold harmless, and its employees,
representatives, agents and affiliates, against 
any and all expenses and losses of any kind (including reasonable
attorneys’ fees and costs) incurred by in connection with any claim of
trademark or copyright infringement, defamation, breach of confidentiality,
privacy violation, false or deceptive advertising or sales practices.


 


9. Provision of Advertising Materials.
Advertiser will provide all material for the advertisement in accordance with
MAG’s policies in effect from time to time as are communicated to Advertiser,
including (without limitation) the manner of transmission to MAG and the lead-time
prior to publication of the advertisement, MAG shall not be required to publish
any advertisement that is not received in

















 


accordance with such policies. Advertiser herby grants to MAG a
non-exclusive, worldwide, fully paid license for the term of this agreement
only to use, reproduce and display the advertisements (and the contents,
trademarks and brand features contained therein) in accordance herewith.


 


9.                          Retention of Property Interest. Advertiser understands that
this Agreement does not transfer any interest (property or otherwise) of MAG to
Advertiser. MAG understands that this Agreement does not transfer any interest
(property or otherwise) of Advertiser to MAG. All interests are retained by MAG
and Advertiser respectively and each is only granted a license to use such
interests subject to the Standard Terms and Conditions and the Advertising
Agreement.


 


10.                    Confidentiality. The terms and conditions of this Agreement
are confidential and neither party will make any public statement, press release,
or other announcement relating to the terms and conditions of or the existence
of this Agreement without the prior written approval of the other, unless
required by law to do so. The confidentiality obligations herein shall in no
way prevent Advertiser from communicating confidential information or terms of
this agreement to its affiliates, subsidiaries, parents or franchisees for the
purpose of conducting and promoting Advertiser’s, affiliates', subsidiaries',
parents' or franchisees’ business.


 


11.                    Merger. The Standard Terms and Conditions together with the
Advertising Agreement set forth the entire agreement between MAG and
Advertiser. This Agreement supersedes any and all prior agreements (written or
oral) of MAG and Advertiser with respect to the subject matter set forth
herein.


 


12.                    Conflicts. MAG and Advertiser hereby expressly reserve the
right to terminate this Agreement at any time said Agreement conflicts, or
causes MAG or Advertiser, in their respective sole and absolute discretion, to
breach or otherwise stand in violation of any other contract to which MAG or
Advertiser is a party, whether past, present or future.


 


13.                    Successors in Interest. This Agreement is duly enforceable
against the other party in accordance with its terms and conditions, and the
rights and obligations herein shall inure to the benefit of the parties, their heirs,
successors, and permitted assigns.


 


Agreed to in Conjunction
with Advertising Agreement        


 


	
   

  	
  /s/ Michael
  Menis

  	
   

  	
   

  
	
   

  	
  Signature
  of Advertiser

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Dustin
  Moore

  	
   

  	
   

  
	
   

  	
  Signature
  of MAG