PUBLISHER TERMS AND cONDITIONS
These Terms and Conditions are incorporated by reference into and govern Insertion Order(s) (“IO”) entered into by CallCore Media, Inc., its subsidiaries and affiliates (collectively, the “Company” of “Advertiser”) and Publisher. Any conflict between these Terms and Conditions and an IO shall be governed by the terms of the IO. These Terms and Conditions and the applicable IO(s) are referred to herein collectively as the “Agreement” which Agreement shall be effective as of date the IO is executed by both parties (the “Effective Date”). The Agreement sets forth the parties’ respective rights and obligations with respect to the purchase of certain consumer actions including, without limitation, clicks, impressions, purchases, registrations and submission of consumer data (“Action(s)”) by Advertiser from Publisher. The Actions and related obligations and services may be further described in the IO. For purposes of the Agreement, any reference to Publisher shall include any and all in-house or third party marketing agents, partners, sub-affiliates and/or sub-publishers providing services to Publisher in connection with the Action generation services contemplated hereunder (collectively, “Sub-Publishers”). Publisher shall remain, at all times, fully responsible and liable for any and all acts and/or omissions of its Sub-Publishers, and for ensuring that each such Sub-Publisher complies with any and all obligations, restrictions and other terms applicable to Publisher hereunder.
1. MARKETING ACTIVITY.
In connection with generating Actions hereunder and depending on the marketing methods authorized or specified in the IO, Publisher may be authorized to: (i) send email and SMS text messages to individuals in Publisher’s proprietary database(s) (collectively, “Publisher Databases”); and (ii) feature certain Advertisements (as defined below) on websites and/or landing pages owned and/or operated by Publisher (collectively, “Publisher Website(s)”). Publisher must submit the URL of every Publisher Website utilized hereunder at least five (5) days prior to use of same. Advertiser reserves the right to reject and/or prohibit, at any time, the use by Publisher of any Publisher Website hereunder, even where Advertiser previously approved of same. Publisher must provide at least ten (10) business days’ written notice prior to making any changes to any Publisher Website previously approved by Advertiser and utilized hereunder, which changes must be approved anew by Advertiser prior to publication of same. Any and all leads, consumer data records and/or other data submissions obtained from Advertisements by Publisher and provided to Advertiser shall consist of individuals that have provided “prior express written consent” to receive text messages, commercial telephone calls, including pre-recorded messages, robocalls and/or autodialed via automated technology, to the telephone number(s) (including wireless number(s)) provided to Publisher, and any Sub-Publishers or other third party that provide data to Advertiser. For purposes hereof, the term “prior express written consent” shall have the same meaning set forth under the Telephone Consumer Protection Act (47 USC § 227) and its implementing regulations (47 CFR § 64.1200), as amended from time-to-time (“TCPA”). Publisher agrees to fully indemnify and hold Advertiser harmless from and against any and all liability, claims, judgments, settlement amounts or other costs (including reasonable attorneys’ fees) incurred by Advertiser in connection with Publisher’s failure or suspected failure to comply with the provisions set forth in this paragraph and/or the TCPA.
Publisher shall retain the records of each individual’s “prior express written consent” (“Consent Records”) for a minimum of seven (7) years following creation of same, and shall provide such Consent Records to Advertiser within five (5) business days of receipt of Advertiser’s request at any time during that seven (7) year period. Publisher agrees that Company, or any designee of Company that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement to examine, inspect, audit, and review all such records, and any source documents used in the preparation thereof, during normal business hours upon written notice to Publisher at least five business days prior to such examination, inspection, review, or audit. Such audit shall be limited to those books and records specifically relating to information regarding the leads generated under this Agreement.
3. MARKETING RESTRICTIONS.
(a) Other than where permitted by Advertiser in writing, in advance, Publisher shall not use “incentivized marketing” or establish, or cause to be established, any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Actions, nor create the appearance of incentivized marketing or otherwise attempt to induce consumers to provide Action-related information through use of any other incentives.
(b) Publisher may not, nor knowingly permit any person to, inflate the amount of Actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, iFrames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person completing an Action registration form. Publisher may not: (i) place any statement in close proximity to the Advertisements requesting that end-users “click” on or fill-out the applicable Action registration form (e.g., “Please click here”); (ii) place misleading statements in close proximity to the Advertisements; (iii) take control of an end-user’s computer by delivering advertisements that the end-user cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (iv) install or execute on another’s computer one or more additional software program(s) without consent of the end-user (in addition, Publisher must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the end-user); and/or (v) distribute spyware or other similar harmful software.
(c) Without limiting any of the marketing restrictions contained herein, absent Advertiser’s prior written approval in each instance, Publisher may not: (i) include or promote any Advertisements in, by and/or through any blogs, news articles or other social media outlets; or (ii) use any endorsements or testimonials in connection with marketing the Advertisements.
(d) Unless authorized in writing in advance by Advertiser, Publisher may not use third-party trademarks or any other term excluded in any applicable IO, in any manner to direct traffic to any Publisher Websites. This prohibition includes, but is not limited to, purchasing keywords from search engine service providers (“Paid Search Networks”), or purchasing inclusion in search engine networks (“Paid Inclusion Networks”), where the associated keywords include the trademark, service mark and/or brand name of any third party, or any derivative or misspelling of any such trademark, service mark or brand name. Publisher must provide all text and proposed keywords/phrases that it would like to bid on (“Keyword Text”) to Advertiser for approval or editing, prior to submitting same to any Paid Search Network or Paid Inclusion Network. Without limiting the foregoing, Publisher must not violate the rules, requirements or regulations of any Paid Search Network or Paid Inclusion Network, and Publisher shall fully indemnify and hold harmless Advertiser from and against any and all liability, claims, judgments, settlement amounts or other costs (including reasonable attorneys’ fees) incurred by Advertiser arising out of or in connection with such a violation.
(e) Publisher will not use inappropriate content on, or in connection with, the Advertisements, Publisher Websites and/or email messages sent to the Publisher Databases including, without limitation, content that promotes or contains language referring to: (i) the use of alcohol, tobacco or illegal substances, nudity, sexually explicit material, pornography, profanity, adult-oriented content, expletives or inappropriate language; (ii) illegal or unethical activity, deceptive acts, racism, hate, material that promotes violence, “spam,” mail fraud, gambling, pyramid schemes, investment opportunities or illegal advice; (iii) libelous, defamatory, infringing, false or misleading content, or other content that is contrary to public policy; (iv) content that may expose Advertiser to negative publicity; (v) piracy (of software, videos, audio/music, books, video games, etc.) hacking/cracking/phreaking, emulators/ROMs, or distribution of copyrighted materials; (vi) content that violates the rights of others, such as intellectual property or privacy rights; (vii) activities generally understood as Internet abuse including, but not limited to, the sending of unsolicited bulk electronic mail; or (viii) content that is otherwise offensive or inappropriate in Advertiser’s sole discretion.
(f) Publisher shall not, under any circumstances, broker the Agreement and/or the associated campaigns other than where Advertiser provides its prior express written approval.
4. E-MAIL MARKETING REQUIREMENTS.
Where permitted under the applicable IO, Publisher may send commercial email to the Publisher Databases in connection with generating Actions hereunder. Publisher shall be responsible for ensuring that the Publisher Databases were collected, compiled and maintained, and that each email sent hereunder is sent, in accordance with all privacy, data protection and any other laws, statutes and governmental regulations applicable to same including, without limitation, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), state email, deceptive marketing and privacy laws including, but not limited to, the Michigan Children’s Protection Registry (https://www.protectmichild.com/senders/) and the Utah Child Protection Registry (https://www.registrycompliance.com/apply.html), the Children’s Online Privacy Protection Act and California Online Privacy Protection Act. Any costs and/or fees charged to Publisher by its Internet Service Provider related to responding to and/or managing allegations of “spam” or any other unauthorized usage complaints received from prospective email recipients, regulatory agencies or otherwise shall be borne exclusively by Publisher. Publisher is solely responsible for all consumer complaints in connection with email campaigns it conducts. Publisher shall: (a) make adequate disclosures as required by law to those in the Publisher Databases regarding its email and privacy and security policies; and (b) respond to all complaints within three (3) business days after Publisher becomes aware of the subject complaint. Publisher further represents and warrants that the email addresses in the Publisher Databases were originally compiled with the consumer’s “Affirmative Consent,” as defined in CAN-SPAM, and that all recipients have in fact opted-in to the applicable Publisher Databases. Publisher must, upon the request of Advertiser, supply the Publisher Website (along with a then-current screen shot of the registration path and disclosures), and the name, date, time and IP address where the consumer signed-up and/or gave Affirmative Consent to Publisher to be contacted with such email messages.
Publisher represents and warrants that it shall: (i) not falsify email header or transmission information (including, without limitation, source, destination and routing information); (ii) not use brand names and/or trademarks of another party in the subject or from lines or body of any commercial email transmission; (iii) not seek or obtain unauthorized access to computers for the purpose of sending any commercial email; (iv) include within all commercial email sent, a statement that identifies the email as a commercial solicitation; (v) include within all commercial email sent, Publisher’s correct point-of-origin email address, transmission information and routing information; (vi) include within all commercial email sent, clear, prominent opt-out instructions in the email and in the first line of the text, if required by applicable law; (vii) include within all commercial email sent, a toll-free telephone number or valid email address at which recipient may contact Publisher to file complaints and/or opt-out; (viii) include within all commercial email sent, a clearly displayed functioning unsubscribe link which, when activated by user, actually and permanently removes the user’s email address from the applicable Publisher Databases; and (ix) include within all commercial email sent, the identifier and any disclaimers that Advertiser assigned to the email.
5. SUPPRESSION LISTS.
With respect to any email suppression list generated by Publisher hereunder, or provided to Publisher by Advertiser (collectively, the “Suppression List”), Publisher shall: (a) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of the Agreement; (b) regularly use such Suppression List to remove any and all email addresses contained therein from the receipt of future commercial email messages; (c) not retain a copy of any Suppression List following termination of the Agreement; (d) not use any Suppression List for purposes of email appending in any manner whatsoever; (e) hold any Suppression List made available by Advertiser in trust and confidence; and (f) not disclose any Suppression List made available by Advertiser to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms of the Agreement. Publisher further agrees and acknowledges that: (i) it has downloaded and removed the domains located on the Federal Communications Commission’s (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in mailings hereunder; and (ii) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained therein will be removed before sending any mailings hereunder. Publisher shall provide Advertiser with a copy of the Publisher-generated Suppression List at least once per week. If no such email addresses are supplied by Publisher, Advertiser may conclude that no such addresses exist.
Unless otherwise terminated as set forth herein, the term of the Agreement commences on the Effective Date and terminates on the end date of the campaign as set forth in the IO. Either party may terminate the Agreement at any time without cause upon ten (10) business days’ prior written notice. If either party materially breaches the Agreement, the other party may terminate the agreement for cause by providing written notice of such breach, which if not cured within two (2) business days of such notice shall constitute grounds for immediate termination. In the event of termination without cause, Advertiser shall remain liable for payment due for Actions under the IO prior to the effective date of termination. If Advertiser terminates the Agreement for cause, Advertiser may retain all payments due to Publisher as of the date notice of the breach is provided to Publisher. If the Publisher violates Sections 4 or 5 of this Agreement or the CAN-SPAM Act, Publisher agrees that the Agreement may be terminated without further notice in the sole discretion of the Company, which decision shall be final, and any pending payment related thereto will be forfeit. Upon termination by either Party for any reason, Publisher shall cease the Actions.
Advertiser shall either provide Publisher with all marketing materials including, without limitation, banners, buttons, links, co-registration forms, email, audio and video files, content, text, graphic files, programming code and similar media and/or data, to be used in connection with generating Actions hereunder (“Advertisements”) and/or must pre-approve any Advertisements provided by Publisher prior to Publisher’s use of same hereunder. Without limiting the foregoing, Advertiser shall have sole discretion with respect to the creation of the “subject” and “from” lines used in connection with any email sent hereunder. Advertiser has no obligation to Publisher, and undertakes no responsibility or liability, to review the Publisher-provided Advertisements to determine whether such Advertisements may result in liability to third parties. No other images, graphics, links, copy or process for generating Actions may be used by Publisher without first obtaining the prior express written permission of Advertiser. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with the Advertisements, including the Advertisements provided by Publisher (if any). For the term of the Agreement only, Advertiser grants to Publisher a limited, revocable, non-transferable, non-exclusive, royalty-free license to use the Advertisements solely and exclusively as necessary to perform its services hereunder and for no other purpose. Publisher shall remain fully liable at all times for any Advertisements provided by Publisher to Advertiser for approval hereunder, even if approved by Advertiser. In the event that Advertiser desires to cancel the use of any Advertisements (including any portion of such Advertisements), Publisher shall cease the distribution and/or use of same to and/or in connection with the Publisher Databases and Publisher Websites no more than twenty-four (24) hours following Advertiser’s written request.
Publisher will not edit, modify, deviate from or otherwise make any changes to any Advertiser provided and/or approved Advertisements in any way without Advertiser’s prior written approval. Where Publisher has made any such unapproved change to the Advertisements, Advertiser reserves the right to withhold any amounts generated by or, where already paid out, reclaim, any and all amounts already paid to, Publisher hereunder (“Forfeiture”). Forfeiture shall be in addition to any and all remedies available to Advertiser at law or in equity including, without limitation, indemnification obligations arising hereunder.
Publisher agrees to be paid by Advertiser for all advertising published by Publisher on a CPA, CPC, or CPM basis in accordance with the applicable Action, and payment terms, as set forth in the applicable IO. Unless otherwise stated, Publisher will submit invoices, stated in US Dollars, to Advertiser weekly on each Monday for amounts for the prior Monday through Saturday. Unless otherwise stated, Advertiser shall remit payment to Publisher on each invoice within seven (7) days of receiving the invoice by ACH payment. Publisher shall pay any sale, use or other tax associated with such payment. Where Publisher has materially breached the terms and conditions of the Agreement and/or, in the reasonable judgment of Advertiser, committed fraud, Advertiser reserves the right to withhold or, where already paid out, reclaim, any and all amounts generated by Publisher. Publisher shall be responsible for paying any and all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Publisher’s activities hereunder, except taxes based upon Advertiser’s net income. If Publisher disputes any payment, it shall notify the Company in writing within ten (10) days from receipt of Payment; failure to notify the Company pursuant to this provision shall result in waiver of any claim by Publisher relating to such payment.
Advertiser will provide reports and Publisher agrees to invoice Advertiser based on Advertiser reporting, which shall be final and binding. If Advertiser permits Publisher to host the Advertisement in a CPA campaign, Publisher will allow Advertiser to place a tracking pixel on the Advertisement and Advertiser’s reporting generated from such tracking pixel will be final and binding on Publisher. Advertiser may allow use of Publisher’s reporting only if agreed to expressly in writing in the applicable IO.
10. REPRESENTATIONS AND WARRANTIES.
Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the execution of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms; and (d) its marketing activities will neither infringe on any copyright, trademark, U.S. patent or any other third party right, nor knowingly violate any applicable law or regulation.
(a) During the term of the Agreement, and until such time as the “Confidential Information” (as defined below) is no longer protectable under applicable law, neither party will use or disclose any “Confidential Information” of the other party except as specifically contemplated herein. “Confidential Information” means information that: (i) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, the Confidential Information of Advertiser shall include, without limitation, the leads, Suppression Lists, its technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, lists of actual or potential customers or suppliers and the terms of the Agreement.
(b) Each party may use Confidential Information received from the other party only in connection with and to further the purposes of the Agreement during the term of the Agreement and may only provide such Confidential Information to its respective directors, employees and legal advisors who have a “need to know” such Confidential Information and who are obligated to honor, confidentiality provisions at least as stringent as those set forth in the Agreement. The fact that Confidential Information does not carry a proprietary legend, or is transmitted orally, shall not act as a waiver to deprive such information from protection under the Agreement.
(c) Section 11(a) shall not apply to information which belongs to the receiving party or is: (i) already known by the receiving party; (ii) publicly known or becomes publicly known through no unauthorized act of the receiving party; (iii) lawfully received from a third party without restriction on use or disclosure if, to the receiving party’s knowledge, such third party had the legal right to disclose such information; or (iv) independently developed by the receiving party without reference to or use of the disclosing party’s Confidential Information. In addition, a party may disclose Confidential Information hereunder if pre-approved in writing by the other party for disclosure, or if disclosure is required by law, governmental agency or rule, or court order, so long as the party required to disclose the information provides the other party with timely prior notice of such requirement, in advance, where permitted.
(d) Upon completion or termination of the Agreement or the written request of the Disclosing Party at any time, the receiving party shall, within five (5) business days from such completion, termination or request, return all copies of Confidential Information to the disclosing party or certify, if so requested, in writing that all copies of Confidential Information have been destroyed; except for material reasonably required to be maintained by counsel.
(e) Publisher recognizes that Advertiser has proprietary relationships with the third parties that obtain leads and other Actions from Advertiser, as well as third party Publishers, other than Publisher, that provide leads and other Actions to Advertiser pursuant to separate agreements (collectively, “Media Partners”). Publisher agrees not to circumvent Advertiser’s relationship with such Media Partners, or otherwise solicit, obtain, offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by Publisher and/or Advertiser hereunder for any Media Partner that is known, or should reasonably be known, by Publisher to have such a relationship with Advertiser, during the term of the Agreement and for one (1) year following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Publisher can show that any such Media Partners already obtained such services from, or provided such services to, Publisher, as applicable, prior to the Effective Date of the Agreement, then Publisher shall not be prohibited from continuing such relationship. Publisher agrees that monetary damages for its breach, or threatened breach, of this Section 11(e) will not be adequate and that Advertiser shall be entitled to: (i) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (ii) liquidated damages from Publisher in the amount equal to one hundred percent (100%) of the fees received by, or paid by, Publisher from or to the subject Media Partner; and/or (iii) any and all other remedies available to Advertiser at law or in equity.
(f) The parties agree that during the term of the Agreement and for a period of one (1) year thereafter, they will not directly or indirectly solicit or attempt to solicit the employment of any of the other party’s employees, officers or directors, provided, that employment solicitations directed to the general public shall not be prohibited pursuant to this Section 11(f).
(g) The parties agree and understand that a material breach of the confidentiality provisions of this Section will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching party shall, in addition to all other remedies, be entitled to seek preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond. The foregoing remedy is a material, bargained for basis of the Agreement and has been taken into account in each party’s decision to enter into the Agreement.
(h) All lead information that is the result of an Action that is provided to Advertiser pursuant to the Agreement is the sole and exclusive property of Advertiser and/or it clients. Publisher may not disclose or use such information for any purpose other than performing its obligations under the applicable IO and for no other purpose.
12. CLASS ACTIONS.
13. DISCLAIMER OF WARRANTIES.
ADVERTISER PROVIDES ITS ADVERTISEMENTS, WEBSITES AND THE WEBSITES OF ITS MEDIA PARTNERS, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY ADVERTISEMENT. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY ADVERTISEMENT ADVERTISER’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. ADVERTISER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, NON-INFRINGEMENT, AVAILABILITY, RELIABILITY, TIMELINESS, ACCURACY, SECURITY, COMPLETENESS, TITLE, QUIET ENJOYMENT.
14. LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL ADVERTISER BE LIABLE TO PUBLISHER OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICES, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION OR DATA, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. IN NO EVENT WILL ADVERTISER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT ADVERTISER HAS BEEN ADVISED AND/OR OTHERWISE HAS KNOWLEDGE OF THE POSSIBILITY THEREOF. UNDER ANY AND ALL CIRCUMSTANCES, THE AGGREGATE LIABILITY OF ADVERTISER TO PUBLISHER SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY ADVERTISER TO PUBLISHER PURSUANT TO THE APPLICABLE IO. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Publisher agrees to indemnify, defend and hold harmless Advertiser, its subsidiaries, Media Partners, agents, contractors, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorneys’ fees) arising out of or relating to any: (a) breach of the Agreement by Publisher; (b) any claim related to the generation of Actions by Publisher and/or Publisher’s marketing practices associated therewith; (c) any claim related to the Advertisements provided by Publisher, Publisher Databases and/or Publisher Website; and/or (d) the acts and/or omissions of any Sub-Publisher including, without limitation, the failure of any such Sub-Publisher to comply with any requirement, obligation, restriction or other term applicable to Publisher hereunder. Advertiser agrees to indemnify, defend and hold harmless Publisher its subsidiaries, agents, contractors, officers, directors, members and employees from and against any loss, cost, claim, injury or damage (including reasonable attorneys’ fees) alleged by any third party arising out of or relating to any material breach of the Agreement by Advertiser. The obligations under this Section 15 are expressly conditioned on (a) the indemnified party giving the indemnifying party prompt written notice of any claims, demand, or suit threatened or instituted against it; (b) the indemnified party providing the indemnifying party (at the indemnifying party’s expense) with all information and assistance reasonably necessary to defend or settle such liability or claim; (c) the indemnifying party having control of the defense and all related settlement negotiations; and (d) the indemnified party taking no action that may prejudice the indemnifying party’s ability to defend the claim. Subject to the foregoing, the indemnified party shall not settle any such claim without the prior written consent of the indemnifying party.
16. FORCE MAJEURE.
Neither party will be liable, or be considered to be in breach of the Agreement, on account of such party’s delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, pandemics, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
17. GOVERNING LAW; JURISDICTION AND DISPUTE RESOLUTION.
This Agreement will be governed and construed in accordance with the laws of the State of Florida without giving effect to conflict of laws principles. The parties consent to jurisdiction and proper venue in Volusia County, Florida. Both parties agree that they will attempt to resolve all disputes first by mediation with a mediator selected by both parties, and the costs of mediation to be equally shared. If the dispute cannot be resolved through mediation, the Parties shall submit the dispute to binding arbitration pursuant to the commercial arbitration rules of the American Arbitration Association to be conducted within Volusia County, except that any claim seeking injunctive relief may be brought in the appropriate state or federal court for Volusia County. The party that substantially prevails in any arbitration or litigation brought under this Agreement shall be entitled to recover its reasonable attorney’s fees and costs. Both parties acknowledge and agree that the Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any state having jurisdiction and shall not be governed by the United Nations Convention on the International Sale of Goods.
18. TRADE COMPLIANCE.
Publisher represents and warrants that it (i) is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, (ii) is not identified as a “Specially Designated National;” by the Office of Foreign Assets Control, (iii) is not placed on the U.S. Commerce Department’s Denied Persons List, and (iv) will not collect information from consumers if any applicable laws in Publisher’s country prohibits it from doing so in accordance with this Agreement.
If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Publisher may not assign the Agreement without the prior written consent of Advertiser. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. The parties to the Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by the Agreement. The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. The Agreement may be executed and delivered by email or facsimile and the parties agree that such email or facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures. Any notices provided for or concerning this Agreement shall be in writing and sent via overnight courier to the respective address of each party in the applicable IO. The addresses may be changed at any time by giving prior written notice. Any notices to Advertiser, however, shall be sent with a copy via email to the attention of the general counsel at email@example.com.
20. ENTIRE AGREEMENT.
These Term and Conditions, together with the IO, sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. The Agreement may only be amended or modified by a written agreement signed by both parties.
Last Updated: June 23, 2020