TIA Industry Product Locator - TIA INTERNET MARKETPLACE ADVERTISING AGREEMENT

TIA INTERNET MARKETPLACE ADVERTISING AGREEMENT

IMPORTANT: READ THIS AGREEMENT (THIS "AGREEMENT") CAREFULLY BEFORE USING THE APPLICATIONS (DEFINED BELOW) OR DOWNLOADING OR USING THE SOFTWARE (DEFINED BELOW).

BY CLICKING THE "I ACCEPT" BUTTON, YOU, ON BEHALF OF YOURSELF (IF YOU ARE ACTING AS AN INDIVIDUAL) OR ON BEHALF OF ANY INDIVIDUAL OR BUSINESS ENTITY FOR WHOM YOU ARE ACTING (COLLECTIVELY, "YOU"), EXPRESSLY CONSENT AND AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU (1) SHOULD CLICK THE "I DO NOT ACCEPT" BUTTON, AND (2) MAY NOT ENTER INTO THIS TRANSACTION.

ONCE YOU ACCEPT THIS AGREEMENT, YOU WILL BE DIRECTED TO PRINT A COPY, SIGN IT, AND FAX IT TO THE TIRE INDUSTRY ASSOCIATION AT 502-964-7859 WITH THE HEADING "TIA INTERNET MARKETPLACE CONTRACT." IF YOU DO NOT DELIVER A SIGNED AGREEMENT TO THE TIRE INDUSTRY ASSOCITION WITHIN FORTY-EIGHT (48) HOURS, THIS AGREEMENT SHALL TERMINATE AND YOU WILL BE RESPONSIBLE FOR ALL DAMAGES AND EXPENSES INCURRED BY THE TIRE INDUSTRY ASSOCITION AS A RESULT OF YOUR BREACH.

This Internet Marketplace Advertising Agreement ("Agreement") is made and entered into as of the 9 day of September, 2010 ("Effective Date"), by and between: The Tire Industry Association, Inc. ("TIA"), a Kentucky Corporation, with offices at 3332 Gilmore Industrial Blvd., Louisville, Kentucky, 40213-4113, and
("Customer"), a corporation, with offices at . TIA and Customer are collectively referred to as the "Parties."

WHEREAS, TIA operates a website on the Internet currently known as the "Internet Marketplace" (the "Website") on and through which TIA desires to provide to Customer the service of advertising Customer’s goods and services; and

WHEREAS, Customer desires to accept from TIA the service of advertising Customer’s goods and services on and through the Website;

NOW THEREFORE, in consideration of the mutual promises contained herein, the parties, intending to be legally bound, agree as follows:

1. ADVERTISING SERVICES. Subject to the terms and conditions of this Agreement, TIA agrees to perform and provide to Customer, the advertising services ("Services") marked below and more fully described in the attached exhibits. In return, Customer agrees to promptly pay the fees for the provision of such Services, as more fully detailed in the attached exhibits:

(Please select your package and then read the Exhibit for it)
a. Basic Listing: Those Services listed in Exhibit A hereto.
b. Profile Listing: Those Services listed in Exhibits A & B hereto.
c. Product Listing: Those Services listed in Exhibits A, B and C hereto.

2. DELIVERY AND PERFORMANCE. Within thirty (30) days of the Effective Date, Customer shall deliver the text, images, logos, graphics, etc. (the "Data") to TIA in such file formats and on such media as specified by the TIA. Within fifteen (15) days of Customer’s delivery of the Data in specified formats/media, TIA shall commence performance of the Services chosen above. Customer acknowledges that TIA shall not be responsible for any delays in TIA’s performance of the Services in the event Customer fails to deliver the Data in substantial conformance with this Section.

3. LICENSE. In consideration of TIA’s performance of the obligations of this Agreement and solely in connection with TIA’s performance of this Agreement, Customer grants to TIA a limited, non-transferable, non-exclusive, worldwide license, for the term of this Agreement and only on and via the Site and in connection with computer hardware and software used to maintain, backup and mirror the Site, to (a) copy, use, store, publicly display, publicly perform, and transmit the Data; (b) incorporate the hypertext reference links in the Data; and (c) display Customer’s trade names, trademarks or service marks in the Data.

4. PROPRIETARY RIGHTS.
a. Customer Ownership. Customer shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in the Data, Cus-tomer’s trade names, trademarks, and service marks therein and all legally protectable elements, derivative works, modifications and enhancements thereto, whether or not developed by Customer or any contractor, subcontractor or agent for Customer.
b. TIA Ownership. Except as provided in the preceding section, Customer acknowl-edges that the Site, including, without limitation, all trade names, trademarks, service marks, content, text, images, software, media and other materials therein, is a work or collective work, proprietary to or licensed by TIA, protected under copyright, trademark, and other intellectual property laws, whether or not developed by TIA or any other person. To the extent that ownership of any element of the Site does not automatically vest in TIA by virtue of this Agreement or otherwise, Customer hereby transfers and assigns to TIA all of Customer’s right, title and interest in elements of the Site and protectable elements or derivative works thereof.

5. SERVICES TERMS AND OBLIGATIONS. Subject to the terms and conditions of this Agreement, TIA shall use commercially reasonable efforts to provide the Services twenty-four (24) hours a day, seven (7) days a week, throughout the term of this Agreement. Customer agrees that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which TIA may undertake from time to time; or (iii) causes beyond the control of TIA and which are not reasonably foreseeable by TIA, including, without limitation, interruption or failure or telecommunication or digital transmission links, terrorism, hostile network attacks and network congestion or other failures.

6. UNACCEPTABLE CONTENT. TIA reserves the right, at any time and in TIA’s sole discretion, to refuse to perform the Services with respect to the Data or any portion thereof which: (a) fails to conform to the format and technical specifications set forth by TIA; (b) may constitute or is the subject of a notice or claim of any Lanham Act violation, false designation or origin, false advertising or unfair competition under the law of any jurisdiction; (c) contains or is alleged to contain any content, work, name, mark, designation, materials or link that actually or potentially violates any applicable law or regulation or infringes any proprietary, intellectual property, contract or tort right of any person; (d) contains any content, work, name, mark, designation, materials or link that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; or (e) contains any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

7. TAXES. Customer shall be solely responsible for and shall pay all sales, use, service or other taxes, duties or levies of any governmental entity (exclusive of taxes on TIA's net income), including interest and penalties thereon, if any, relating to the Services, whether or not stated in any invoice to Customer.

8. WARRANTIES.
a. Customer's Warranties: Customer warrants to TIA that: (i) Customer has the right and authority to enter into and perform its obligations under this Agreement; (ii) the Data shall not constitute or be the subject of a notice or claim of any Lanham Act violation, false designation or origin, false advertising or unfair competition under the law of any jurisdiction; (iii) the Data does not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials or link which actually or potentially violates any applicable law or regulation or infringes any proprietary, intellectual property, contract or tort right of any person; (iv) the Data does not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials or link that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (v) the Data does not and shall not contain any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and (vi) Customer owns the Data and all intellectual property rights therein, or has the right to grant the license to TIA herein and authorize the worldwide copying, display and transmission of the Data via the Website.
b. TIA’s Warranties: TIA represents and warrants to Customer that (i) TIA has the power and authority to enter into and perform its obligations under this Agreement; and (ii) TIA shall perform its obligations under this Agreement in a commercially reasonable manner.

9. DISCLAIMER. ASIDE FROM THOSE WARRANTIES SPECIFICALLY MENTIONED IN SECTION 8(b), THE SERVICES AND WEBSITE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. PROVISION AND/OR USE OF THE SERVICES OR WEBSITE ARE AT CUSTOMER’S SOLE RISK. TIA DOES NOT WARRANT THAT THE SERVICES OR WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES TIA MAKE ANY WARRANTY AS TO THE PERFOR-MANCE OR ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES OR WEBSITE. EXCEPT AS EXPRESSLY STATED AT SECTION 8(b), TIA MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT.

10. LIMITATION OF LIABILITY. EXCLUSIVE OF LIABILITY UNDER SECTION 11 (INDEMNIFICATION), IN NO EVENT SHALL TIA BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF TIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TIA’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY CUSTOMER TO TIA HEREUNDER. BOTH PARTIES HEREBY EXPRESSLY ACKNOWLEDGES THAT THE FOREGOING LIMITATION HAS BEEN NEGOTIATED BY THE PARTIES AND REFLECTS A FAIR ALLOCATION OF RISK.

11. INDEMNIFICATION.
a. By Customer: Customer agrees to indemnify, hold harmless and defend TIA and its directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney’s fees, arising from or relating to any allegation that has engaged in conduct, which if true would breach its warranties under Section 8(a) above (WARRANTIES).
b. By TIA. TIA agrees to indemnify, hold harmless and defend Customer and its directors, officers, employees and agents from and against any action, claim, demand, dispute, or liability, including reasonable attorney’s fees, arising from or relating to any allegation that has engaged in conduct, which if true would breach its warranties under Section 8(b) above (WARRANTIES).

12. TERM AND TERMINATION.
a. Term: The term of this Agreement shall commence on the date the last party to this Agreement signs the Agreement Effective Date and shall continue for one (1) year, unless sooner terminated. The term of this Agreement shall automatically renew thereafter for successive and consecutive one year (twelve month) terms unless either party provides written notice of termination to the other party at least sixty (60) days prior to the expiration of such term of its desire not to renew.
b. Termination : This Agreement may be terminated: (i) by either party upon sixty (60) days written notice to the other party; (ii) by TIA, immediately upon notice to Customer, upon TIA’s reasonable belief that Customer has engaged in conduct, which if true would breach Customer’s warranties under Section 8(a) above (WARRANTIES).
c. Payment Upon Termination: In the event this Agreement is terminated, Client shall pay TIA for all Services undertaken in performance of its obligations hereunder up to the date of termination. Such payment is due and payable within thirty (30) days following such termination.

13. GENERAL
a. Independent Contractors: The parties to this Agreement and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Assignment: Neither party may assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in part without the prior written consent of the other party, such consent not to be unreasonably withheld.
c. Waiver: No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
d. Severability: If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
e. Amendment: No amendment, change, waiver or discharge hereof shall be valid unless in writing and signed by both parties.
f. Law: This Agreement is made in and shall be governed in all respects by the laws of the Commonwealth of Kentucky, U.S.A., without regard to its conflict of laws provisions. The parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Any arbitration shall be conducted in Jefferson County, Kentucky, U.S.A., and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Notwithstanding the mandatory arbitration provision, either TIA or Customer may seek any interim or preliminary relief necessary to protect its rights or property pending the completion of arbitration from a court of competent jurisdiction in Jefferson County, Kentucky, U.S.A. Any action related to the Website will be governed by Kentucky law and U.S.A. federal law.
g. Entire Agreement. This Agreement, together with Exhibits A, B and C hereto, which are incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understand-ings, oral or written.

IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement.

TIA:	CUSTOMER:
Signature	Signature
Name	Name
Title	Title
Date	Date

(TIA will complete it's portion after receiving fax)

20153332

YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD.

A CONFIRMATION OF THIS AGREEMENT WILL BE E-MAILED TO YOU AND TO THE TIRE INDUSTRY ASSOCIATION.

PLEASE FILL IN YOUR E-MAIL ADDRESS