These Terms and Conditions ("Agreement" or "Terms") are a
legally binding and enforceable agreement between Senka Projects Limited, Onega House, 112 Main Road, Sidcup, Kent, United Kingdom, DA14 6NE
("Company") and you ("Advertiser").
Definitions
"Action" means installs, clicks, sales, impressions, downloads,
registrations, subscriptions, etc. as defined in the applicable Insertion Order.
"Advertiser" means a party or parties which may obtain access to
the Company Assets, as defined below, in order to market Advertiser's Content and
provide additional services, under the terms of this Agreement and in accordance
with the applicable Insertion Order (as defined herein). In any instance where
Advertiser is an agency entering this Agreement on behalf of a client, any reference
to "Advertiser" shall refer jointly to Advertiser as well as the applicable
underlying client.
"Advertiser's Content" any related promotional materials and
Content provided by Advertiser or on Advertiser's behalf, to be placed, displayed
and promoted, including without limitations Advertiser’s marks, logos, brands and
trade-names, as well as any website or information, including additional
advertisement, to which such Content may link to, if applicable.
"Advertiser's Trademarks" including without limitations
Advertiser’s marks, logos, brands and trade-names.
"Advertising Network" is a network of registered third party
affiliates and publishers ("Media Partners") run by the Company,
utilizing related technology and software.
"Claims" means claims, suits, demands and actions brought or
tendered for defense or indemnification.
"Company Assets" means software application, service, web pages or
digital placements owned by Company, properly licensed to Company or otherwise made
available by Company, through the Advertising Network, Media Partners or other third
parties, for the purpose of placing Content.
"Confidential Information" as defined in Company's website, under "Confidential
Information".
"Content" means data, text, information, advertisements, graphics,
links to third party sited or services, web pages, signs, images, software and code,
technology, files, texts, photos, audio or video, sounds, visual works, musical
works, works of authorship and components.
"Consideration" shall mean:
an amount which equals a fixed cost per thousand Impressions
("CPM") of Advertiser's Content, which are served and
displayed to End Users under this Agreement; or
an amount which equals a fixed cost per clicks ("CPC") on
Advertiser's Content by End Users under this Agreement; or
an amount which equals a fixed cost per Action ("CPA") by
End Users under this Agreement;
an amount which equals a fixed cost per install ("CPI") by
End Users under this Agreement;
Or any combination thereof, as detailed in the applicable Insertion Order or
any other agreement between Company and Advertiser.
"End User" means human end user who interacts with the Company
Assets.
"Insertion Order" means a document (including an online
registration page or order form) executed by both parties that specifies custom
pricing and additional terms.
"Impressions" means the display of Advertiser's Content by the
Company on Company's Assets to End Users as contemplated herein.
"Losses" means damages, losses, costs, and liabilities, including
reasonable attorney and professional fees, arising from a Claim
"Party" means the Company or the Advertiser.
"Prohibited Activity" The activities listed in Company's website
under "Prohibited Activity", which may be updated by the Company at its sole
discretion from time to time.
"Prohibited Content" The content listed in Company's website under
"Prohibited Content", which may be updated by the Company at its sole discretion
from time to time.
"Proprietary Rights" means all intellectual property rights,
including, without limitation: (a) all inventions, whether patentable or not, all
improvements thereto and derivatives thereof, and all patents and patent
applications; (b) all registered and unregistered marks and registrations and
applications for registration thereof; (c) all copyrights in copyrightable works,
all other rights of authorship, including without limitation moral rights, and all
applications and registrations in connection therewith; (d) all trade secrets and
confidential business and technical information (including, without limitation,
research and development, programming, know-how, proprietary knowledge, financial
and marketing information, business plans, formulas, technology, engineering,
production, operation and any enhancements or modifications relating thereto, and
other designs, drawings, engineering notebooks, industrial models, software and
specifications); (e) all rights in databases and data compilations, whether or not
copyrightable; and (f) all copies and tangible embodiments of any or all of the
foregoing (in whatever form, including electronic media).
Licenses and services
Subject to the terms and conditions of this Agreement, Advertiser hereby grants to
Company during the Term, a limited, fully revocable, non-exclusive,
non-transferable, non-sub-licensable, royalty-free, worldwide right and license to
use, reproduce and distribute the Advertiser's Content through Company Assets and
solely in connection with this Agreement. Advertiser reserves any rights not
expressly granted and disclaims any implied license, including implied licenses to
copyrighted materials, Advertiser's Trademarks and patents.
Advertiser acknowledges and agrees that: (I) the Advertiser's Content may be
integrated to the Company Assets in conjunction with other content; (II) unless
otherwise stated in an applicable Insertion Order the frequency, positioning, order
and placements of the Advertiser's Content on the Company Assets shall be determined
by Company or its Media Partners, as applicable, at their respective sole
discretion; (III) Company shall have no obligation to review the Advertiser's
Content.
The Company may make available to Advertiser certain features to assist Advertiser
with generation, selection and optimization of End Users' targeting decisions
("Targeting"). Advertiser hereby acknowledges that the Advertiser
is solely responsible for the Advertiser Content and the Targeting.
Advertiser Content Codes, Conversion Tracking and Tracking
Unless otherwise stated in writing by Company, each Advertiser's Content or link
used by Company in connection with a specific campaign must include, in unaltered
form, the special transaction computer code or tracking link provided by Company
("Ad Codes").
Advertiser will not knowingly modify, circumvent, impair, disable or otherwise
interfere with any Ad Codes and/or other technology and/or methodology required or
made available by Company to be used in connection with any and all Advertiser
Content in order to track Actions.
Company's services under this Agreement do not involve investigating or resolving
any claim or dispute involving Advertiser and any third party.
In case the Advertiser is working with several marketing partners, the Advertiser
will ensure that all campaigns that run through Company, will be subject to the
"last click wins principle". For the purpose of this subsection, the "last click
wins principle" shall mean that an Action will be attributed to the marketing
partner which generated the last click of the respective End User before the Action
took place.
When "server-to-server"/cookie-less/server based tracking is employed in order to
track Actions, Advertiser has to ensure that all Actions are accurately tracked and
timely reported to Company's system, including the correct unique ID used by Company
in the tracking URL.
In case of technical problems or outages caused by either of the parties' systems
which lead to a non-restorable loss of data regarding Actions, one of the following
methods should be used to determine the correct number and attribution of Actions
(to be applied in the order of their listing):
"Manual" matching of MAC addresses, IDFAs or any other unique identifiers
that can be retrieved ex-post by the Media Partner and Advertiser in order
to determine attribution and number of Actions;
Approximation based on historical conversion rate data (click-to-action)
from Company's system in the following preferential order:
If available, from the same campaign; or
From the most comparable campaign for which historical data is
available in Company's system. For the purpose of this article,
"comparable" means that the campaign should be closely comparable
with regards to the defined Action, product and platform, Geo
locations, advertising methods used and Media Partners.
Intellectual Property
Except as expressly granted in the Agreement, Company retains all right, title and
interest in and to the Company Assets and any versions, revisions, corrections,
modifications or derivatives thereof, including any Proprietary Rights therein
("Company Property"). All rights in and to the Company Property which are not
expressly granted herein are reserved by Company. Except as expressly granted in the
Agreement, Advertiser retains all right, title and Interest in and to the
Advertiser's Content, Advertiser's Trademarks and related Content thereof, including
any Proprietary Rights therein. All rights in the Advertiser's Content, including
any of Advertiser’s marks thereof, which are not expressly granted herein, are
reserved by Advertiser. This Agreement does not convey any title or ownership rights
to the other Party.
Neither party shall assert any Proprietary Rights in or to the other party’s
Content, materials or any element, derivation, adaptation, variation or name
thereof. Neither party shall have the right to remove, obscure or alter any notices
of Proprietary Rights or disclaimers appearing in or on any Content or materials
provided by the other party.
Neither party shall: (I) contest, or assist others to contest the other Party's
rights or interests in and to the such Party's property and all applications,
registrations or other legally recognized interests therein, or any element,
derivation, adaptation, variation or name thereof; or (II) seek to register, record,
obtain or attempt to pursue any Proprietary Rights or protections in or to the other
Party; or (III) remove, obscure or alter any notices of proprietary rights or
disclaimers appearing in or on the other Party's property.
Restrictions on Use
Advertiser shall not, or not allow any third party, to: (I) infiltrate, hack, copy, create
derivative works of, reverse engineer, decompile, or disassemble or otherwise attempt to
interfere with the proper operation of the Company Assets, or any part thereof for any
purpose and shall not simulate or derive any source code or algorithms from the Company
Assets; (II) represent that it possess any proprietary interest in the Company Assets, or
remove any notices or copyright information from the Company Assets; (III) attempt to sell,
resell, sublicense, modify, transfer, lease, assign, pledge, or share its rights under this
Agreement; (IV) use any robot, spider, or other device to retrieve, index, scrape, data
mine, or in any way gather information, Content, or other materials from the Company Assets;
(V) take any action, directly or indirectly, to contest the Company's intellectual property
rights or infringe them in any way; (VI) except as specifically permitted in writing by the
Company, use the name, trademarks, trade-names, and logos or other proprietary rights of the
Company; (VII) use the Company Assets for any Prohibited Activity or other unlawful,
harassing, intrusive or abusive activities, or for any unauthorized purposes.
Term and Termination
This Agreement shall become effective as of the Effective Date, as specified in the
Insertion Order, and shall remain effective until terminated pursuant to this
section and as further provided in the accompanying Insertion Order (the "Term").
Either Party may terminate this Agreement; upon Two (2) days prior written notice to
the other Party. Following the termination of the Agreement, any provisions of the
Agreement that in order to fulfill their purpose need to survive the termination of
the Agreement, shall survive.
In the event of any termination:
Advertiser will pay Company all the Considerations amounts due and owing as
of the termination date within seven (7) days according to terms of this
Agreement;
Neither party will be liable to the other party or any other person or
entity for damages resulting from the termination of the Agreement;
Each Party will have no obligation to maintain any information stored in its
data centers related to the other Party;
Without derogating from the foregoing and subject to the terms of this
Agreement, upon termination, all rights, licenses and obligations of the
Parties shall cease, except that all obligations that accrued prior to the
Effective Date of termination and remedies for breach of this Agreement
shall survive.
Confidential Information of either party which is in the possession of the
other party shall be immediately returned. If the Confidential Information
is not returned, it should be maintained confidential in accordance with
article 14.
Mutual Representations and Warranties
Each Party represents and warrants to the other Party that: (I) 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; (II) 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; (III)
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; (IV)
it is the owner or has all legal rights and interest in its software, components, material
or Content; and (V) to the best of its knowledge its software, components, material or
services does not infringe or misappropriate the intellectual property or other proprietary
rights of any third party when used by the other Party in accordance with the terms of this
Agreement.
Company Representations and Warranties
Company hereby represents and warrants that it has the skills and will use
reasonable efforts to perform its obligations hereunder as best as commercially
possible. Company does not have any obligation to monitor any Content made available
through or in connection with the Advertiser's Content, for any purpose and, as a
result, is not responsible for the accuracy, completeness, appropriateness, legality
or applicability of any such Content.
Company reserves the right, at its sole discretion and without liability, to reject
or remove any Advertiser Content from the Company Assets. Advertiser acknowledges
that any campaign may be terminated or suspended, whether by Company or its Media
Partners, at any time and without notice to Advertiser. Advertiser hereby
acknowledges that Company is acting as an intermediary between Advertisers and Media
Partners and as such Company shall not be held responsible or liable for any actions
or omissions performed or omitted by any third parties.
Advertiser Representations and Warranties
Advertiser hereby represents and warrants that: (I) any and all activities or
obligations it undertakes in connection with the Agreement shall be performed in
compliance with all applicable laws, rules and regulations, including, without
limitation, privacy laws; (II) the Advertiser's Content is in compliance with all
applicable laws, rules and regulations as well as industry best practices,
including, without limitation, the Children's Online Privacy Protection Act of 1998
("COPPA") and CAN-SPAM Act of 2003 ("CAN-SPAM");
(III) it owns or has the valid legal right or license to use and distribute the
Advertiser's Content to the extent required or contemplated hereunder, and the
Advertiser's Content do not and will not, during the term of the Agreement, infringe
or violate any third party's Proprietary Rights or any other right of any person or
entity, including but not limited to intellectual property rights, privacy and
publicity rights, and shall fully comply with any third-party licenses, permits,
guidelines and authorizations required. Advertiser is solely responsible for the
Advertiser Content or technology that may be reached or linked via the Advertiser's
Content; (IV) Company will not be responsible for any discrepancy or misleading
actions with respect to the Advertiser's Content; (V) Advertiser's Content, related
services and any other materials used by it in connection with or in relation to
this Agreement will not contain, use or promote any Prohibited Content or engage,
encourage or utilize any Prohibited Activity, as reasonably deemed by the Company to
its sole discretion. Advertiser further represents that it employs all necessary
monitoring and review procedures for the purpose of complying with the aforesaid.
Advertiser further represents and warrants that: (I) it shall submit the Advertiser
Content in accordance with any technical specification provided by the Company; (II)
Any information the Advertiser provides the Company (including contact information
or payment information) will at all times be complete and accurate, and will be
maintained up-to-date at all times; (III) it will not promote any mobile
applications which are not available for download on the applicable Store. Upon
removal of such application from the Store, Advertiser shall promptly inform Company
of such occurrence and immediately cease to run the campaign associated with such
application; (IV) it will not use the Company Assets to Sell, resell, lease, rent,
sublicense, distribute, display or make any other use of Service or the Inventory,
except as expressly permitted hereunder; (V) Copy, crawl, index, cache or store any
information derived by Company, except as expressly permitted hereunder, or
otherwise use robots, spiders, scraping or other technology to access or use the
Company Assets to obtain any information beyond what Company provides Advertiser
under the Agreement.
Advertiser acknowledges and agrees that Company may collect information about End
Users which includes but is not limited to personally identifiable information as
well as behavioral information for Company’s commercial or internal use.
Advertiser warrants and represents that when serving promotional Content to the End
User in connection with the Advertiser's Content, Advertiser shall make commercially
reasonable efforts to: (I) provide the End User with disable functionalities (e.g.,
close button, "X", etc.) that close the promotional Content and do not trigger new
promotional Content; (II) provide the End User with instructions concerning opt-out
mechanisms.
The Advertiser and Advertiser's Content shall not in any manner infringe End User's
privacy rights and shall not collect, transmit, disclose, copy or use End User's
personal information without the End User's explicit and informed consent. If
applicable, the Advertiser must provide End User with Privacy Policy which shall be
available for display to any End User before any information is being collected and
shall adhere to the actual usage of the End User's personal information. Such
Privacy Policy must have clear and accurate description of the information that is
collected, used or shared with third parties, the method and purpose of collection,
and the type of recipients of any such collected information. Sensitive information
(e.g. banking details) should be collected and retained with proper encryption.
The Company has executed a Data Processing Agreement ("DPA") in
accordance with Article 28 of the EU General Data Protection Regulation 2016/679
("GDPR"). The Advertiser hereby warrants and represents that any
personal data (as defined in the GDPR) or other personally identifiable information
which is shared with the Company by the Advertiser shall be governed under the
provisions of the DPA. The DPA is an integral part of this Agreement and does not
derogate from any of the Advertiser's representations and warranties.
Company's Assets
Subject to a two (2) business days prior written notice, Company reserves the right,
at its sole discretion, to add additional guidelines or requirements during the term
hereof in the event the industry guidelines shall be updated.
Company shall have the right, at its sole discretion, to remove the Advertiser's
Content from the Company Assets if: (I) Company receives a complaint from any third
party regarding the Advertiser's Content, or any related Content; (II) Company
reasonably believes that promoting the Advertiser's Content will have an adverse
impact on the Company Assets or Company’s reputation; (III) the Advertiser's Content
is in violation of the Agreement; (IV) the Advertiser's Content is in breach of any
applicable law, rule or regulation, or industry best practices; or (V) the
Advertiser's Content breaches any third party's right. Advertiser acknowledges and
agrees that Company will not be liable for any damages or costs resulting from or
connected to the removal of the Advertiser's Content in any manner to Advertiser or
to any other third party.
Company represents and warrants that: (a) it shall make reasonable efforts to comply
with all applicable laws, rules and regulations, including but not limited to, laws
governing privacy, data collection, infringement or misappropriation of any
copyright, patent, trademark, trade secret or other proprietary, property or other
intellectual property right; (b) Company Assets, including among others, all Content
provided therein do not and will not: (I) infringe upon misappropriate or otherwise
violate Proprietary Rights of any third party, or infringe upon any applicable law;
(II) contain any virus, worms, Trojan horses, or any other computer code, files or
programs designed to interrupt, hijack, malware, spyware, spam-ware, destroy, limit
or adversely affect the functionality of any computer software, mobile device,
hardware, network or telecommunications equipment.
Considerations
Unless specified otherwise in the applicable Insertion Order, Company will provide a
monthly invoice based on the Consideration model agreed upon between the parties.
Payment will be due within seven (7) business days of the date appearing on each
invoice.
Advertiser must timely pay all Considerations due to the Company, as specified in
the Insertion Order, pursuant to the terms set out in the applicable Insertion
Order(s) executed by the Parties.
All Considerations shall be calculated as detailed in the Insertion Order.
Advertiser shall submit to Company any disputes relating to the measurement or
calculation of any Action, in writing or by email specifying the reason for such
objection, including providing reasonable proof, by the 10th of the calendar month
following the month in which the invoice was issued. If no such dispute has been
made within the foregoing time period, the Action shall be deemed as accepted by
Advertiser and billed accordingly. Any portion of a charge not disputed in good
faith must be paid in full.
Advertiser will have no right to setoff, withhold or otherwise deduct any amount
owed to Company hereunder (and accordingly transfer to Company when due any such
amount whether in dispute or not) against any amount owed or claimed to be owed by
Company to Advertiser (under any theory of liability).
The Company reserves the right to charge additional fees and interest for the delay
of payments. The Company will charge 40 EURO surcharge per invoice, for each delayed
invoice. In the event of any failure by Advertiser to make payment, Advertiser will
also be responsible for all reasonable expenses (including attorneys' fees) incurred
by Company in collecting such amounts.
Advertiser is solely responsible for paying all applicable taxes, duties or charges
imposed or that may be imposed by any applicable governmental agency, political
subdivision thereof or any authority therein having power to tax in connection with
the Agreement.
All payments under this Agreement will be in U.S. Dollars unless agreed otherwise
and inclusive of any applicable taxes, including or any other national, state or
local tax expressly VAT.
Advertiser will provide the Company with accurate and complete billing information
including a valid credit or debit card or any other payment method as further
detailed in the applicable Insertion Order. If payment is made via a credit or debit
card, Advertiser authorizes the Company to charge all Considerations incurred to the
designated card and acknowledges that periodic (monthly or annual) Considerations
may be charged automatically and without separate authorization unless otherwise
provided on an applicable Insertion Order.
Disclaimer of warranties
To the maximum extent permitted by law, without derogating of any of the terms of
this Agreement, the Company Assets are provided on an "as is" and "as available"
basis, without warranties or conditions of any kind, either express or implied,
including, without limitation, any warranties or conditions of title, performance,
non-infringement of third party rights, merchantability or fitness for a particular
purpose. In addition, Company does not represent or warrant that: (I) the Company
Assets or any part therein will be error free or that any errors will be corrected
or (II) that the operation of the Company Assets or any part therein will be
uninterrupted.
Each Party further expressly disclaims that the Advertiser's Content and/or Company
Assets will be error-free or without interruption or that any errors in the
Advertiser's Content and/or Company Assets be corrected, or that any information
contained therein will be accurate or complete, without derogating of any of the
terms of this Agreement.
Without derogating of any of the terms of this Agreement, to the extent the
Advertiser's Content and/or Company Assets incorporates any third party materials or
software that belongs to one or more third parties, then the materials or software
are provided "AS IS" and subject to the terms and restrictions of the applicable
third party. Each Party makes no warranty whatsoever regarding the third party
materials or software, without derogating of any of the terms of this Agreement.
Limitation of Liability
To the extent permitted by law, in no event shall either Party be liable to the
other Party for lost profits or business opportunities, loss of use, loss or
inaccuracy of data, cost of procurement of substitute goods or services, software,
systems or services, or for special, incidental, indirect, punitive or consequential
damages, however caused, and under any theory of liability, whether for breach of
contract, tort (products liability, strict liability and negligence), or otherwise,
arising from or related with the Agreement, whether or not the Party has been
advised of the possibility of such damages and notwithstanding the failure of
essential purpose of any limited remedy stated herein.
Without derogating from any of the foregoing, in no event will the Company's
aggregate liability for any Claim arising out of or related to the Agreement, to the
fullest extent possible under applicable law, exceed the monthly average of
Consideration made under this Agreement with respect to three (3) months preceding
any Claim under which such liability shall arise. Some jurisdictions do not allow
the exclusion or limitation of incidental, consequential or other damages, so the
above limitations and exclusions may not apply.
No action arising under or relating to this Agreement, regardless of its form, may
be brought by either Party more than three (3) month after the cause of action has
accrued and in any event no later than three (3) months after the expiration and/or
termination of this Agreement. The foregoing limitations shall apply notwithstanding
any failure of essential purpose of any limited remedy and are fundamental elements
of the bargain between the parties.
Indemnification
Except as otherwise set forth in this Agreement, each Party ("Indemnifying Party")
shall indemnify, defend, and hold harmless the other Party and its shareholders,
directors, officers, employees and agents ("Indemnified Party"), from and against
all Claims, and for all Losses that result or arise from Claims, commenced or
prosecuted by any third party against the Indemnified Party, which in whole or in
part, arise from or is related to a Claim of a third party for a breach of the
Indemnifying Party's representations under this Agreement, reduced to a final
adverse, non-appealable judgment made by a court of competent jurisdiction and
actually borne by the Indemnified Party.
The Indemnified Party will: (I) promptly notify the Indemnifying Party of any Claim;
(II) provide the Indemnifying Party, at the cost of the Indemnifying Party,
reasonable information and assistance in defending the Claim; and (III) give the
Indemnifying Party control over the defense and settlement of the Claim; provided,
however, that any settlement will be subject to the Indemnified Party’s prior
written approval, which approval shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, the Indemnified Party will not be required to allow
Indemnifying Party to assume the control of the defense of a Claim, in which case
the Indemnified Party will assume the control at Indemnifying Party's costs, to the
extent that the Indemnified Party determines that: (1) such Claim relates directly
to the Company Assets (if the Advertiser is the Indemnifying Party), or to the
Advertising Content (if the Company is the Indemnifying Party); or (2) the relief
sought against the Indemnified Party is not monetary damages; in addition, the
Indemnified Party may join in the defense of any Claim at its own
Confidentiality
During the Term of this Agreement and thereafter, each Party agrees that it will not
disclose or use the Confidential Information of the disclosing party without the disclosing
Party's prior written consent. Each Party agrees that it will take reasonable steps, at
least substantially equivalent to the steps it takes to protect its own Confidential
Information, during the Term and for a period of five (5) years thereafter to prevent the
disclosure of the other Party’s Confidential Information other than to its employees,
subsidiaries or other agents who must have access to such Confidential Information for such
Party to perform its obligations or exercise its rights hereunder, who will each agree to
comply with this section. The Confidentiality obligations herein shall survive any
termination or expiration of this Agreement.
Non-Circumvention
Advertiser recognizes that Company has proprietary relationships with Media
Partners. Advertiser agrees not to circumvent Company's relationship with such Media
Partners, or to otherwise solicit, purchase, contract for or obtain services similar
to the services performed by Company hereunder from any Media Partners that is
known, or should reasonably be known, by Advertiser to have such a relationship with
Company, during the term of the Agreement and for six (6) months following
termination or expiration of the Agreement. Notwithstanding the foregoing, to the
extent that Advertiser can show that any such Media Partners already provided such
services to Advertiser prior to the date of the first Insertion Order executed by
the parties, then Advertiser shall not be prohibited from continuing such
relationship.
Advertiser agrees that monetary damages for a breach, or threatened breach, of this
section will not be adequate by themselves and that Company shall be entitled to
liquidated damages from Advertiser in the amount equal to one hundred percent (100%)
of the fees paid by Advertiser to the subject Media Partner, as applicable, for the
prior twelve (12) month period. If the respective period is shorter than 12 months,
the amount due will be calculated based on the true duration of the partnership to
an equivalent of 12 months. The Advertiser has the right to prove that no or only
substantially lower damages occurred and Company has the right to prove that higher
damages occurred.
Independent Contractors
The Parties hereto are independent contractors and nothing herein constitutes or creates an
employer-employee, agency, joint venture or representative relationship between the Parties,
or any other legal arrangement that would impose liability upon one Party for the act or
failure to act of the other Party. Neither Party shall have any express or implied power to
enter into any contracts or commitments or to incur any liabilities in the name of, or on
behalf of, the other Party, or to bind the other Party in any respect whatsoever.
Force Majeure
Other than with respect to payment obligations arising hereunder, neither party will be
liable, or be considered to be in breach of this Agreement, on account of such party's delay
or failure to perform as required under the terms of this 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, fires, explosions, telecommunications, Internet or Advertising 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.
Changes to the Agreement
Company may make changes to the Agreement from time to time, at its sole discretion. The
most current version will be posted on Company's website. By continuing to access or use of
the Company's services, as described in this Agreement after the changes become effective,
the Advertiser agrees to be bound by the revised Agreement.
Assignment
Each Party may not assign any of its rights or obligations hereunder without the prior
written consent of the other Party and assignments in violation of the foregoing shall be
void.
Severability
If for any reason a court of competent jurisdiction finds any provision of this Agreement to
be unenforceable, that provision of this Agreement shall be enforced to the maximum extent
permissible so as to effectuate the intent of the parties, and the remainder of this
Agreement shall continue in full force and effect.
Entire Agreement
This Agreement and applicable Insertion Order constitute the entire agreement between the
Company and Advertiser with respect to the subject matter hereof and supersedes all prior or
contemporaneous understandings or agreements, written or oral, regarding such subject
matter. Without derogating from the generality of the foregoing, in the event that the terms
of this Agreement are in conflict to the terms of any other agreement, provision, quote,
order, acknowledgment, or other communications between the parties, the terms provided
herein shall prevail over such conflicting terms (even if the conflicting terms are
incorporated in a written instrument signed by the parties herein after the execution of
this Agreement unless the Parties specifically referred in such instrument to the name and
date of this Agreement and to the amendment of its terms and conditions).
Miscellaneous
The captions and headings in this Agreement have been inserted for convenience only and
shall not be deemed to limit or otherwise affect any of the provisions of this Agreement.
No waiver
No term or provision of this Agreement shall be deemed waived and no breach excused, unless
such waiver or consent shall be in writing and signed by the other Party. No waiver or
consent by either Party to deviate from the provisions of this Agreement shall operate as a
waiver of any subsequent right.