GENERAL TERMS AND CONDITIONS
These Advertising General Terms and Conditions (the “General Terms”) dated this first day of January, 2011 are incorporated into all Advertising Agreements by YP PUBLISHING, LLC, a Nevada limited liability company (“Service Provider”) and the Advertiser (each such Advertising Agreement may be referred to herein as an “Advertising Agreement”). With respect to each Advertising Agreement, each party agrees as follows:
1.1. “Party” means Service Provider or any other party to an Advertising Agreement.
1.2. “Advertiser” means any Party who enters into an Advertising Agreement with Service Provider.
1.3. “Effective Date” means the date on which the Advertising Agreement is executed and accepted by Service Provider.
1.4. All capitalized terms not otherwise defined herein have the meanings attributed to them in the General Terms.
2. Conflicts in Provisions. In case of conflict between any provision of the General Terms and any provision of an Advertising Agreement, the provision of the Advertising Agreement shall apply.
3. Disclaimer of Warranties. SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS TO ALL GOODS OR SERVICES IT SUPPLIES. IN PARTICULAR, AND WITHOUT LIMITING THE FOREGOING, TO THE EXTENT ADVERTISEMENTS ARE PLACED IN THE MOVERS YELLOW PAGES, THE PARTIES AGREE THAT ADVERTISER ASSUMES ALL RISK THAT ANY COPY OF THE MOVERS YELLOW PAGES IS NOT PROPERLY DELIVERED FOR ANY REASON WHATSOEVER.
4. Limitation of Liability. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING FROM ITS SUPPLYING, OR FAILING TO SUPPLY, ANY GOODS OR SERVICES. IN ANY EVENT, SERVICE PROVIDER’S ENTIRE LIABILITY UNDER AN ADVERTISING CONTRACT OR THE GENERAL TERMS SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY ADVERTISER PURSUANT TO THE ADVERTISING CONTRACT AT ISSUE.
5.1. Each notice, demand, request, request for approval, consent, approval, disapproval, designation or other communication required or desired to be given or made under the Advertising Agreement or these General Terms shall be in writing and shall be effective and deemed to have been received (a) when delivered in person, (b) when sent by fax with receipt acknowledged, (c) five (5) days after having been mailed by certified or registered United States mail, postage prepaid, return receipt requested, or (d) the next business day after having been sent by a nationally recognized overnight mail or courier service, receipt requested.
5.2. Each Notice required or desired to be given or made under the Advertising Agreement or these General Terms shall be addressed as follows: (a) if to Service Provider, at 9303 Gilcrease Avenue, Suite 1045, Las Vegas, Nevada 89149; and (b) if to Advertiser, at the address set forth below the Advertiser’s signature on the Advertising Agreement.
6. Time is of the Essence. Time is of the essence in each Party’s performance of all obligations under the Advertising Agreement or the General Terms.
7. Dispute Resolution. Any controversy or dispute arising out of the Advertising Agreement or these General Terms, the interpretation of any of the provisions thereof or hereof, or the action or inaction of Service Provider or the Advertiser shall be submitted to arbitration in San Diego, California, pursuant to the commercial arbitration rules of JAMS or ADR Services, Inc. (collectively “Approved Service”), or other recognized arbitration service selected by the party instituting such action provided if any other party objects to the selection of a service other than an Approved Service, the arbitration shall be moved to an Approved Service selected by the party objecting. Any award or decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment upon any award thus obtained may be entered in any court having jurisdiction thereof. No action at law or in equity based upon any claim arising out of or related to the Advertising Agreement shall be instituted in any court by Service Provider or the Advertiser except: (a) an action to compel arbitration pursuant to this Section, or (b) an action to enforce an award obtained in an arbitration proceeding in accordance with this Section.
8. Governing Law. The Advertising Agreement and the General Terms are governed and shall be construed by the laws of the State of California, without regard to its conflict of laws provisions.
9. Attorney’s Fees and Costs. If either party commences an action against the other to enforce any of the terms of the Advertising Agreement or the General Terms or because of the breach by either party of any of the terms thereof or hereof, the Prevailing Party (as hereinafter defined) in such action shall be entitled to recover its attorneys' fees and costs and expenses incurred in connection with the prosecution or defense of such action, including any appeal thereof, in addition to all other relief. “Prevailing Party” within the meaning of this Section 9 shall include, without limitation, a party who brings an action against the other party for sums allegedly due or performance of covenants allegedly breached and obtains substantially the relief sought by it in the action.
10. Severability. In the event that any provision of the Advertising Agreement or the General Terms is invalidated by a court of competent jurisdiction, then all of the remaining provisions of the Advertising Agreement and the General Terms shall continue unabated and in full force and effect.
11. Joint Drafting. The Advertising Agreement and the General Terms shall be deemed to have been jointly drafted by the Parties for all purposes involving their construction and enforcement.
12. Execution in Counterparts. The Advertising Agreement may be executed in counterparts, all of which taken together shall constitute one and the same contract.
13. Further Assurances. Whenever requested to do so by the other party, each party shall execute, acknowledge, and deliver any and all such further conveyances, assignments, confirmations, satisfactions, releases, powers of attorney, instruments of further assurance, approvals, consents, and any and all such further instruments and documents as may be necessary, expedient, or proper, in order to complete any and all conveyances, transfers, sales, assignments, or cancellations contemplated by the Advertising Agreement or the General Terms, and to do any and all other acts and to execute, acknowledge, and deliver any and all documents as so requested to carry out the intent and purpose of the Advertising Agreement and the General Terms.