Terms and Conditions

Please read these Terms and Conditions carefully. They explain your rights and obligations regarding use of the ZCommercials.com Service and constitute a binding agreement between you and Zcommercials Inc. ("ZCommercials.com"). By accepting this Agreement, you shall be deemed a customer of ZCommercials.com, and acknowledge and agree to be bound by and comply with all of these Terms and Conditions ("Terms"), ZCommercials.com's Privacy Policy, which may be found at www.Zcommercials.com, and ZCommercials.com's "Advertising Policies and Guidelines," which may be found at www.Zcommercials.com.

Note that when you select an ad, you will be licensing the right to run that ad in the Media Schedule you have purchased from a media outlet of your choice. The ad itself will at all times be owned by ZCommercials.com. Of course, any images, music or text that you give to us to personalize your ad will be owned by you, and may be stored by ZCommercials.com on our website in your account for you to use in connection with your advertising campaigns.

When it comes to scheduling time on television, ZCommercials.com will not schedule time for you to air the ad you have licensedd. This is entirely your responsibility. Zcommercials may from time to time provide you with a media sales representative in your market, however you agree not to hold Zcommercials Inc and its shareholders, subsidiaries, directors, officers responsible for any and all disputes which may arise from you and the media sales provider in your market. If you have questions about these Terms or the ZCommercials.com Service. You may also send questions via e-mail to support@Zcommercials.com.

1.        Definitions. All capitalized terms shall have the meaning set forth in Section 25 and elsewhere in these Terms.

2.        Services Provided . The ZCommercials.com Service includes, but may not be limited to, the following elements:

a.        Assistance in designing a television commercial advertisement based on information such as your location, desired advertising area, demographic criteria, marketing objectives and budget;

b.        Provision of Media Information;

c.        Access to Preproduced Ads which ZCommercials.com will help customize based upon your instructions, and which you may use as the basis for an advertisement for your business through a Media Placement purchased from a cable or broadcast advertising sales company of your choice IN your local cable market.

3.        Use of Preproduced Ads from the ZCommercials.com Ad Collection.

a.        Upon payment of ZCommercials.com's fees, ZCommercials.com will license you to use a Preproduced Ad solely for the purpose of display in Media Placements purchased from your local media outlet and for the exclusive use in your local cable TV market. If you wish to use the same Advertisement in more than 1 market for your business you must purchase additional ad licenses for each subsequent market. Your license to use Preproduced Ads is personal, non-transferable, non-sub licensable and, except as explicitly indicated in the "Exclusivity Policy" below, nonexclusive. You are not authorized, to use Preproduced Ads, customized versions of Preproduced Ads, or the content thereof (other than Advertiser Content), in any other manner whatsoever unless explicitly approved otherwise by ZCommercials.com in writing. Your license does not include the right to possession of copies or tapes of the Preproduced Ads, either in their original or customized versions. The Preproduced Ad in both its original and customized versions may include a mark identifying it as having been created by Zcommercials.com. Your license for a pre-produced ad is only valid for your local Cable TV market that you have specified to Zcommercials Inc.. You are hereby prohibited to use your license in any additional market(s) other than for the local market which you have purchased the license for. If you use your license for a pre-produced ad in any other market other than the market for which you have purchased the license for you agree to pay a fine of no more than $25,000 for each additional market which you have advertised in. If you violate this agreement in whole or in part Z Commercials reserves the right to take legal action against you for fines and damages and any and all lost revenue caused by your violation of this agreement, including any attorneys fees, traveling expenses, and any other fees and expenses which may be incurred by Zcommercials Inc with the pursuit of legal action against you the client. 

b.        As between you and ZCommercials.com, except for Advertiser Content, all copyright and other intellectual property rights contained in or displayed through Preproduced Ads (including customized versions), and other material developed or provided by ZCommercials.com, including without limitation templates, images, scripts, story lines, sound tracks, tag lines, and "look and feel," is and will remain ZCommercials.com's sole and exclusive property. No intellectual property rights in the Preproduced Ads or customized versions will be transferred to you, other than the limited license to use and display your customized version of the Preproduced Ad pursuant to these Terms. Except for any Advertiser Content, ZCommercials.com shall own exclusive rights in any and all derivative works created from Preproduced Ads. When you customize a Preproduced Ad, as between you and ZCommercials.com, the Advertiser Content will be and remain your sole and exclusive property. You hereby grant to ZCommercials.com the worldwide, perpetual, nonterminable, sublicensable, royalty-free right to use any and all Advertiser Content, including for ZCommercials.com's marketing purposes.

c.        "Exclusivity Policy."Certain Preproduced Ads, upon license by you, will automatically be reserved for your exclusive use within designated Markets in accordance with these Terms. The Preproduced Ads that are available for exclusive use will be specifically identified. Other Preproduced Ads are available for use on a non-exclusive or semi-exclusive basis. The terms below refer only to those Preproduced Ads that are available for exclusive use.

i.          When you select a Preproduced Ad for customization, you will be asked to identify a Market in which you intend to use the Preproduced Ad.

ii.         If your ad has exclusivity, except as otherwise provided, you will have exclusive use of your Preproduced Ad in the designated Market for the duration of 12 months regardless of if you choose to air your ad or not. After the twelve month term your exclusivity on your ad will expire and you may choose to renew the same ad for an additional 12 months for a fee of $299 or Zcommercials.com will automatically renew your ad for an additional 12 months with the purchase of a license for a second or third advertisement.

ZCommercials.com reserves the right in its sole discretion to determine the scope of exclusive rights to use Preproduced Ads (including customized versions) in any Market. ZCommercials.com's determinations in connection with all issues concerning exclusive rights to use Preproduced Ads (including customized versions) shall be final.

iii.         Except as explicitly stated above, ZCommercials.com will be under no restriction with respect to granting to others the right to use and display any Preproduced Ad (including customized versions) at any time and in any Market.

d.        Anything to the contrary notwithstanding, ZCommercials.com may, in its sole discretion, immediately terminate any person's Market exclusivity with respect to Preproduced Ads (including customized versions) or the license to you to use a Preproduced Ad (including customized versions) for any reason, including if ZCommercials.com determines that these Terms or ZCommercials.com's Advertising Policies and Guidelines are being abused or violated in any way.

4.         Adherence to ZCommercials.com's Policies and Procedures; Acceptance and Approval of Ads. Your use of the ZCommercials.com Service, or any other services offered by or through ZCommercials.com, will be subject to these Terms, as stated here and ZCommercials.com's Privacy Policy as published on the ZCommercials.com website and as amended from time to time. All media programs, advertisements and Advertiser Content are subject to compliance with ZCommercials.com's Advertising Policies and Guidelines and to ZCommercials.com's approval, which ZCommercials.com may grant or withhold in its sole discretion.

5.        ZCommercials.com's Compensation. ZCommercials.com will charge for its services in accordance with the prices and charges presented to you when you place your order.

6.        Payment. Payment for ZCommercials.com Services will be made at the time the order is placed, by certified Bank Check, Wire Transfer or through third party payment processor(s) such as Paypal, or other means approved by ZCommercials.com. ZCommercials.com may store and use your payment information for processing payments.

7.        Cancellations. Once you have approved and licensedd an advertisement, the advertisement cannot be changed or canceled unless Zcommercials in its sole discretion deems it necessary to cancel the order for any reason. You can not cancel an order for any reason including any spelling or grammatical errors or omissions, aspect ratios or other technical issues, clarity of advertisement, or any other reason pertaining to the overall quality of the advertisement once you have approved that advertisement.

8.        Representations and Warranties. You represent and warrant that

a.        You are at least 18 years of age and the age of majority in your jurisdiction of residence;

b.        You are not a Media Outlet, or an employee, agent or affiliate of a Media Outlet, television station, broadcaster, cable or satellite television system operator;

c.        You have full rights to broadcast the Advertiser Content submitted by you to ZCommercials.com;

d.        You are authorized and licensed to use the names and pictures of any persons or objects depicted in the Advertiser Content;

e.        You are authorized and licensed to use any testimonials contained in the Advertiser Content;

f.         You are the owner of any trademarks, service marks, copyrighted material and other proprietary rights embodied or displayed in the Advertiser Content;

g.        You have documentary substantiation for all claims made in your Advertiser Content and customized Preproduced Ad;

h.        The Advertiser Content submitted by you, and your use of a customized Preproduced Ad, is truthful and not misrepresentative or misleading;

i.          You have the right to broadcast the Preproduced Ad you have selected, as customized with your Advertiser Content, and the broadcasting of such ad will not violate any law, rule, or regulation of a federal, state, or local governmental agency or self regulatory organization or association, or any other provision of applicable law;

j.          The Advertiser Content submitted by you, and your use of a customized Preproduced Ad, will not plagiarize, be libelous, defamatory, harmful, threatening, abusive, harassing, vulgar, hateful, racially, ethnically or otherwise objectionable;

k.        The Advertiser Content submitted by you, and your use of a customized Preproduced Ad, will not invade the privacy rights of any third party, or otherwise infringe upon or violate the rights or property interests of any third party;

l.          The Advertiser Content submitted by you shall not contain any computer viruses, booby traps, time bombs, or other programming that interferes with the normal functioning of the ZCommercials.com website, ZCommercials.com data or ZCommercials.com Services; and

m.       You will not use any part of any Preproduced Ad (including customized versions) outside the normal course of your television advertising campaign (and will not assist any third party to) create any ad similar to, based upon or inspired by any Preproduced Ad of ZCommercials Inc.

9.        Taxes. All charges for the ZCommercials.com Service are exclusive of all national, state, municipal or other governmental excise, sales, value-added, use, personal property, and occupational taxes, excises, withholding taxes and obligations and other levies now in force or enacted in the future, all of which you will be responsible for and will pay in full. You agree to pay or reimburse ZCommercials.com for any taxes that are levied on the transactions hereunder, exclusive of taxes on ZCommercials.com's net income. Any such payments or reimbursements will be payable by charge to the payment account that you have selected for payment of amounts due ZCommercials.com. Upon your written request, ZCommercials.com agrees to provide you with reasonable documentation to support invoiced amounts applied to taxes.

10.     Indemnification.

a.        You are solely responsible for (i) the accuracy, non-deceptiveness, completeness, propriety, and substantiation of the Preproduced Ads, as customized, and other advertising used by you to advertise your business; (ii) all Advertiser Content; and (iii) any information, disclosures or requirements that are imposed upon you as a result of your business activities by any governmental, regulatory or oversight agency, body, tribunal or proceeding. You agree to review and approve all materials prepared by ZCommercials.com or submitted by you to confirm that descriptions and representations, direct or implied, with respect to your business, products, services, industry, and competitors, are accurate and supportable and that such descriptions and representations are in compliance with all legal and regulatory requirements, directives and guidelines.

b.        You will indemnify and hold ZCommercials.com and its related companies, Affiliates, officers, directors, shareholders, licensors, licensees, suppliers, content providers, employees and agents (collectively, the "Indemnitees") harmless from and against any and all losses, damages, liabilities, claims, demands, suits, expenses (including attorneys' fees and expenses) which any Indemnitee may incur arising out of or relating to (i) Advertiser Content and/or your modification, display and use of a Preproduced Ad, including without limitation claims of infringement or misappropriation; (ii) claims that your products or services are defective, injurious, or harmful (including, without limitation, any claim for bodily injury or death); (iii) claims that the manufacture, sale, distribution or use of any of your products or services violates the rights of any third parties or that the advertising, publicity or promotion of your products or services violates or encourages or induces the violation of the rights of any third parties; and (iv) claims predicated on a breach of these Terms by you.

11.     Disclaimer. ZCOMMERCIALS.COM AND ITS RELATED COMPANIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, LICENSORS, LICENSEES, EMPLOYEES, SUPPLIERS, DISTRIBUTORS, CONTENT PROVIDERS AND AGENTS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY REGARDING THE PREPRODUCED ADS (INCLUDING CUSTOMIZED VERSIONS) AND ZCOMMERCIALS.COM SERVICES, STORAGE OF ADVERTISER CONTENT, AND ANY DELIVERABLES INCLUDED IN SUCH PREPRODUCED ADS (INCLUDING CUSTOMIZED VERSIONS including but not limited to Typos, Spelling Errors, Grammatical Errors, Aspect Ratios, Clarity of Advertisements etc) AND ZCOMMERCIALS.COM SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THERE IS NO WARRANTY THAT THE PREPRODUCED ADS (INCLUDING CUSTOMIZED VERSIONS) OR ZCOMMERCIALS.COM SERVICES WILL BE ERROR FREE, WILL BE ON TIME, WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL YOUR PARTICULAR PURPOSES OR NEEDS. ZCOMMERCIALS.COM MAKES NO WARRANTY AS TO STORAGE OF ADVERTISER CONTENT AND SHALL NOT BE RESPONSIBLE FOR ANY LOSS OF OR DAMAGE TO ADVERTISER CONTENT. TO THE EXTENT THAT ZCOMMERCIALS.COM CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

12.     Limited Liability. IN NO EVENT WILL ZCOMMERCIALS.COM OR ITS RELATED COMPANIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, LICENSORS, LICENSEES, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, CONTENT PROVIDERS AND AGENTS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR BUSINESS OR DAMAGES ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF THE THESE TERMS, PREPRODUCED ADS (INCLUDING CUSTOMIZED VERSIONS), MEDIA PLACEMENTS (INCLUDING MISSED MEDIA PLACEMENTS) OR ZCOMMERCIALS.COM SERVICES, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. ZCOMMERCIALS.COM'S AND ITS RELATED COMPANIES', AFFILIATES', OFFICERS', DIRECTORS', SHAREHOLDERS', LICENSORS', LICENSEES', EMPLOYEES', SUPPLIERS', AND AGENTS' AGGREGATE LIABILITY FOR ANY OTHER TYPES OF DAMAGES WILL BE LIMITED TO CUMULATIVE AMOUNTS ACTUALLY PAID BY YOU TO ZCOMMERCIALS.COM UNDER THESE TERMS IN CONNECTION WITH THE PARTICULAR PREPREDUCED ADS OR ZCOMMERCIALS.COM SERVICES THAT ARE THE BASIS FOR SUCH LIABILITY.

13.     Failure Of Suppliers/Force Majeure. ZCommercials.com will use commercially reasonable efforts to attempt to guard against or limit any loss to you as the result of the failure of Media Outlets and other suppliers to properly execute their commitments, but ZCommercials.com will not be responsible or liable for any such failure. In addition, neither party shall be deemed in default of these Terms to the extent that performance of its obligations (other than your payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such party.

14.     Notice. Any notice under these Terms shall be deemed served if delivered in the following respective manners:

15.     Privacy Policy. ZCommercials.com's Privacy Policy applies to use of ZCommercials.com's website and ZCommercials.com Services, and its terms are made a part of these Terms by this reference. You may see ZCommercials.com's Privacy Policy posted online. Additionally, by using the ZCommercials.com website and ZCommercials.com's Services, you acknowledge and agree that Internet transmissions are never completely private or secure, and that any message or information you send to ZCommercials.com may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.

16.     General.

a.      Governing Law. These Terms will be interpreted and construed in accordance with the laws of the State of Massachusetts and the United States of America, without regard to conflict of law principles.

b.      Arbitration. In connection with any dispute or claim arising out of or in connection with these Terms, you and ZCommercials.com agree to arbitrate such dispute arising under these Terms before a single arbitrator mutually agreed upon by the parties, under the auspices of Judicial Arbitration and Mediation Services (JAMS). If the parties are unable to agree upon an arbitrator, the parties agree to the designation of an arbitrator by JAMS. The arbitration shall take place in Boston, Massachusetts or in the office of JAMS closest to that city. The arbitrator shall apply Massachusetts law. The arbitrator's award will be final and non-appealable, and judgment may be sought thereon in any court with jurisdiction. In the event that arbitration is necessary, the prevailing party shall have its costs associated with the arbitration, including its reasonable attorneys' fees, paid by the other party.

c.        Injunctive Relief. You acknowledge and agree that compensatory damages are an adequate and complete remedy for a breach of these Terms by ZCommercials.com, and that you will in no event seek or be entitled to receive injunctive or any other form of equitable relief as a remedy for any such breach. The preceding sentence notwithstanding, nothing herein shall restrict ZCommercials.com's right to seek injunctive relief.

d.        Assignment. You may not assign your rights and obligations under these Terms without ZCommercials.com's written consent. ZCommercials.com may assign its rights and obligations under these Terms.

e.        Late Charges; Attorney's Fees. Any amounts not paid within 30 days of the date due will bear a monthly finance charge equal to the lesser of 1.5% of the outstanding balance or the maximum amount allowed by law. In any action to collect on an unpaid balance, ZCommercials.com will be entitled to recover its attorneys' fees and costs.

f.         Amendment; Waiver. These Terms may be amended unilaterally by ZCommercials.com. An amendment will become effective upon the date that ZCommercials.com posts the amended Terms on ZCommercials.com's website, or upon the giving of written notice to you by mail or by email. Except as provided in the preceding sentence, these Terms may not be amended except in a writing signed by both parties. Any waiver of the provisions of these Terms or of a party's rights or remedies under these Terms must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time, will not be construed as a waiver of such party's rights under these Terms and will not in any way affect the validity of the whole or any part of these Terms or prejudice such party's right to take subsequent action. No exercise or enforcement by either party of any right or remedy under these Terms will preclude the enforcement by such party of any other right or remedy under these Terms or that such party is entitled by law to enforce.

g.        Termination. Notwithstanding anything to the contrary, upon notice to you, ZCommercials.com may immediately terminate your right to use any advertisement and/or these Terms (i.e., its agreement with you) without cause and without liability. 

h.        Survival. Sections 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 will survive termination of these Terms.

17.     Agreement Evidenced by Electronic Click or Signature. The parties intend to enter into these Terms through an Internet transaction conducted through ZCommercials.com's website. Accordingly, you agree that your consent to the terms of these Terms will be evidenced by your click on the checkbox entitled "I agree," as presented on ZCommercials.com's website and recorded on ZCommercials.com's business records kept in the ordinary course of business. You represent that you are authorized to act on behalf of the party listed on the account, and have the authority to enter into these Terms on behalf of such party.

18.     Entire Agreement. These Terms express the entire agreement between the parties, and all previous or contemporaneous agreements and understandings are merged herein and superseded hereby.

19.     Severability. If any term, condition, or provision in these Terms is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in these Terms. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

20.     Definitions.

a.        Advertiser Content: (i) The images, music, text, video and other additions provided by you, and the customizations and changes made by you, when you customize a Preproduced Ad; and (ii) the entire content of an advertisement that you tender to ZCommercials.com for display through a Media Schedule, if the advertisement is not based on a Preproduced Ad.

b.        Affiliates: Advertising agencies, production houses, or individuals that provide advertisement production services or materials to advertisers.

c.        Client, or "you": Persons or companies who license pre-produced ads for use in their respective local cable TV advertising markets through ZCommercials.com or who otherwise use the ZCommercials.com Service.

d.        Market: The local cable TV market in the geographic area in which your licensed advertisement(s) will be run, as delineated and determined by the cable TV providers of North America, and Zcommercials Inc in its sole discretion.

e.        Media Information: Quantitative and qualitative data and other information concerning programming, schedules, audiences of various Media Outlets and similar information of interest to advertisers contemplating buying Media Placements.

f.         Media Outlets: Companies which distribute programming over or through television, radio, the Internet, and/or other media platforms, and/or which sell Media Placements for the purpose of distributing or publishing advertising messages.

g.        Media Schedule: A schedule of Media Placements.

h.        Preproduced Ad: An advertisement made available by ZCommercials.com for your customization and use through the ZCommercials.com Service.

i.          ZCommercials.com Ad Collection: A library of Preproduced Ads available for your customization and   licensed use when licensed through the ZCommercials.com Service.

j.          ZCommercials.com Service: The services described in Section 2 above.