Advertiser Terms & Conditions
TERMS AND CONDITIONS
A. The Agency is in the business of placing advertising, ad banners, hyperlinks, text content, buttons, newsletters, email and/or other forms of advertisement (“Advertisement(s)”), said Advertisements’ content is supplied by Customer, on the Internet, on behalf of its customers who have authorized them to do so, including Customer, which business is carried on by Agency either through its own direct efforts, or by and through entering into arrangements and utilizing the services of other third-party Internet advertising service providers (‘Third-Party Providers’).
B. The Customer wishes to place one or more Advertisements on the Internet.
C. The Customer wishes to engage Agency to place Advertisements on the Internet.
D. The Customer and Agency have agreed to the terms of the Advertising Insertion Order set forth above, and incorporated by reference herein.
NOW, THEREFORE, as and for a good and adequate consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree to be legally bound as follows:
“Advertisement” means the graphic and / or text file(s) meeting the specifications contained in the Insertion Order(s) and supplied by Customer.
“Agency” is PartnerWeekly, L.L.C., a Limited Liability Company, which is the party agreeing to provide Internet advertising placement services to the Customer by providing the Advertisement(s) to it’s affiliate network for placement on the Internet.
“Agency Network” means Agency’s affiliated group of third party Web Sites, email marketers, newsletter publishers, brokers, aggregators and other third parties which may host or publish customer’s advertisement(s).
“Click-through” means the number of times, as recorded by the Agency’s or a Agency network’s server, a user directly interacts with (i.e. clicks on) an advertisement linked for transfer to the Customer’s site or suggested destination. Advertising campaign conducted on a cost per click basis are known as “CPC”.
“Customer “ is you which is the party who is seeking Internet advertising placement services from Agency, under this Agreement, which advertising services are sought either on its own behalf or, on behalf of third parties, including in some situations its own customers or clientele.
“Customer Web Site” means the web site, or affiliated web sites and / or landing pages owned or operated by Customer which are being advertised throughout the Internet.
“Impression” means the number of times an advertisement is served to a user. Impressions shall be measured by the Agency in accordance with its standard methodologies and protocols. Advertising campaigns conducted on the cost per Impression basis are known as “CPM”.
“Insertion Order” means the attached Advertising Insertion Order which is a material part of this Agreement and executed between Customer and Agency.
“Internet” means the global network infrastructure of computers forming the network on which the World Wide Web resides and consisting of web sites, email message delivery and other means of communication via the network.
“Spyware” means any computer program or software that can be used to transmit from the computer, or that has the capability of so transmitting, by means of the internet and without any action on the part of the user of the computer to initiate such transmission, information regarding the user of the computer, regarding the user of the computer, or that is stored on the computer. Spyware includes adware, which is software that is periodically displays ads in user’s computer typically targeted based on words searched for on the Web or derived from the user’s surfing habits that have been periodically sent in the background to a spyware’s web server.
“Start Date” means the first day an Advertisement may be displayed on the Agency Network.
“Stop Date” means the last day an Advertisement may be displayed on the Agency Network.
“Third-Party Providers” means third parties who provide advertising, email, or other Internet advertisement transmission services, and upon whom Agency may call to host or publish the Customer’s Advertisement(s) in order to fulfill this Agreement. Agency’s use of any particular Third-Party Provider will be at the Agency’s sole discretion through independent contracts or orders between Agency and said Third-Party Providers.
“Unit” means a user’s completion of the act as defined by the Insertion Order. Advertising campaigns conducted on a cost per Unit (i.e., acquisition of product and/or service or action as defined by Insertion Order by a Visitor) basis are known as “CPA”.
“User” means any person accessing a Web Site, receiving electronic mail services or otherwise viewing and acting upon Customer’s advertisement on the Internet, including through the use of Third-Party Providers.
“Web Site” is an Internet address which permits users to exchange digital information with a particular host.
1. ADVERTISING PLACEMENT SERVICES
1.1 Customer hereby grants to Agency a nonexclusive, limited, revocable license to:
(i) market, display, perform, copy, transmit, and promote the Advertisement(s) in connection with its obligations hereunder;
(ii) market display, perform, copy, transmit, and promote the Advertisement(s) to Third-Party Providers in connection with its obligations hereunder; and
(iii) grant Third-Party Providers the right to market, display, perform, copy, transmit, and promote the Advertisement(s) on the Internet.
1.2 Upon acceptance by Agency of a properly completed Insertion Order, as provided herein, Agency will place Customer’s Advertisement(s) on the Internet, including through the use of Third-Party Providers.
1.3 For the purposes of this Agreement, an Insertion Order will be deemed to be properly completed upon acceptance of such Insertion Order by Agency and the attachment of such order to this Agreement. Acceptance of such order will in all cases be evidenced by a duly authorized officer for Agency signing the Insertion Order. If an Insertion Order has not been attached to this Agreement, or is not properly signed on behalf of Agency, then this Agreement will be of no force and effect, and Agency will have no obligation to Customer hereunder.
1.4 The Agency’s sole obligation to Customer under this Agreement with respect to Advertisement(s) will be to place such Advertisement(s) on the Internet, including placement of advertisement(s) through the use of Third-Party Providers. Accordingly, placement of Advertisement(s) will be in the discretion of Agency and subject to the right of Agency and/or any Third-Party Provider to reject any particular Advertisement. The Customer acknowledges that Agency and it’s affiliated network of Third Party Providers are not responsible for the Creative content of the Advertisement(s) and/ or any promises contained in the Advertisement(s). Customer agrees to defend, indemnify, and hold harmless Agency, its affiliates and its and their respective officers, directors, employees, and agents, from and against all actions, third party civil or criminal claims, liabilities, losses, damages and expenses, including but not limited to reasonable attorneys’ fees, arising out of or relating to the use of any advertising material supplied by Customer for use by Agency and/or any activity arising out of or relating to any content provided by Customer, or by use of a domain name provided by Customer. Such indemnification shall operate whether or not Agency has been put on notice of the claim.
1.5 This Agreement does not include or require Agency to provide graphic or other advertising design services, or any other services relating to the content and appearance of Advertisements to be placed under the auspices of this Agreement, but this Agreement is instead designed and limited in scope and intended to cover the placement, transmission, and promotion of electronic Advertisement(s) provided by Customer rather than the design or creation of such Advertisements. This Agreement likewise does not cover Web Site development services, programming, or any other service other than those specifically described in this Agreement and in the Insertion Order. Any graphic design services, Web Site development services, programming services, or other similar services not specifically provided for in this Agreement, if desired by Customer from Agency, must be contracted for separately.
1.6 Customer Acknowledges and agrees that Agency is merely a venue which facilitates relationships between the advertisers and publishers. Agency does not pre-screen advertisements for inclusion on the company network and shall not be responsible for policing, monitoring or editing any advertisement.
2. ADVERTISING RESTRICTIONS AND CONDITIONS
2.1 Agency expressly reserves the right to:
(i) refuse any advertising request, cancel any Advertisement, or change any Advertisement that does not completely conform to every material detail, instruction, method, and guideline set forth in the Insertion Order;
(ii) refuse any Advertisement that does not arrive 48 hours prior to the Start Date;
(iii) refuse or cancel the use of any Advertisement that it deems, in its sole and absolute discretion, inappropriate for any reason or no reason;
(iv) refuse at any time to market, display, perform, copy or transmit and promote the Advertisement(s) that Agency believes, in its sole and absolute discretion is an invasion of privacy, is degrading, libelous, unlawful, profane, obscene, pornographic, tends to ridicule or embarrass, is in bad taste, or which in its reasonable discretion is an infringement on a trademark, trade name, or copyright belonging to others;
(v) refuse any advertising request, cancel any Advertisement that is or can be hosted by any directly or indirectly competitive network;
(vi) refuse or cancel any Advertisement which redirects traffic to a Web Site other than the site specifically identified in the Insertion Order; and
(vii) refuse or cancel any Advertisement which on its face asks Users to take advantage of other or additional offers or advertisements not specifically identified in the Insertion Order.
2.2 Customer will provide all creative materials required for hosting the offer, including but not limited to: Banners, language/text for suggested promotional e-mail text, links, and any other creative content as needed, including, but not limited to the use of alternative Text Based Creative unless customer executes a web design, development and hosting agreement with PartnerWeekly.
2.3 Any Advertisement rejected by Agency may be replaced by Customer subject to the reservation of right of Section 2.1; provided that any such replacement material must be in writing and accompanied by appropriate material identifying the Advertisement that it is to replace. Agency will notify Customer of the rejection of any Advertisement, and will have no liability to Customer for any such rejection. Further, Agency will have no liability to Customer for failure to place any Advertisement on any particular portion of the Agency Network.
3. AUDITING AND TRACKING OF CAMPAIGNS
3.1 Customer acknowledges that Agency requires a tracking system that will serve as the verifiable log of responses for computing billing amounts and as the reporter of registrations by URL, Origin ID, or Customer ID code. Customer will provide Agency with Customer ID, Order ID URL and Origin ID for Agency to determine the Customer’s pay, otherwise, Customer’s pay will be based on Agency’s statistics. Unless otherwise agreed, Agency will host the Advertisement and provide the tracking solution to the client under the terms of a separate agreement for the design and implementation of such tracking.
3.2 In the event that Customer hosts the Advertisement, Agency will have the right to place a tracking pixel on the confirmation page for each Advertisement to be delivered hereunder. Payment will be made based on Agency’s counts based on the tracking pixel or Customer’s count whichever is greater. Customer will allow Agency online access to the live statistics and will provide access to records as they become available that will allow Agency to monitor the volume of Unit actions it has generated. Customer agrees to keep its website running and functional, allowing for Unit actions to be processed unless customer executes a web design, development and hosting agreement with PartnerWeekly. All such records provided by Customer will be the sole property of Customer. In the event that the tracking methods employed malfunction or the Customer’ s Website is inoperable, for the period in question, invoicing will be determined by Agency in its sole discretion.
3.3 Unless otherwise provided in the Insertion Order, no offsets or chargebacks may be taken for any non-viable or duplicate leads. Agency will determine in its reasonable discretion what constitutes a non-viable lead. Without limiting the breadth of the foregoing, non-viable leads will include, but not be limited to, leads with incomplete contact information (i.e. a lead which does not include an e-mail address, phone number, or physical address), leads from non-United States citizens, or leads from consumers under 18 years of age. Specific required fields will be detailed on the Insertion Order in order to be required.
3.4 Customer acknowledges that Agency will have sole and absolute responsibility for calculation of the Units that comply with the terms of the Insertion Order. In the event that Customer disagrees with any such determination, it should send Agency a written request for review by Customer within 48 hours of billing. Agency will then provide Customer with a reviewed audit of the numbers. Agency retains the right to audit Customer’s books and records for the purpose of verifying payments. Agency shall be responsible to pay the costs of the audit. No more than two audits may be initiated by the same party in any 12 month period. Agency will provide Customer with reasonable notification of its intention to audit and the audit shall be scheduled to take place only upon a mutually agreed upon date, time and location. Further, the parameters and scope of the audit shall be discussed and planned in advance between the parties hereto and the auditor so as to minimize the disruption to the ongoing business of the party to be audited. If the audit reveals a discrepancy greater than 5% between the numbers provided by Customer and the numbers revealed by the audit, Customer shall be responsible to reimburse Agency for all amounts paid to conduct the audit.
3.5 Customer will provide a weekly and a month’s end summary report reflecting the exact number of Units delivered. The Agency, in its reasonable discretion and by consultation with Customer, will determine the form of said reports. Customer agrees to pay for any over delivery of “Units Ordered” under the terms of this Agreement of an amount no greater than a 10% over delivery.
4.1 Agency will request a credit check with Company’s authorization. Company’s TIN or social security number is used to obtain this free service. Upon receipt of an acceptable credit report from a private credit reporting agency, the security deposit/pre-payment requirement will be waived. An acceptable report shall contain no lien, or account past due more than sixty (60) days during the previous one (1) year period, and no bankruptcy filing in the past seven (7) years.
4.2 In the event of an unsatisfactory report, Customer will be required to remit a refundable deposit or pre-pay for leads purchased prior to the launch of the campaign(s). Such deposit shall be in the amount of five thousand dollars ($5,000) prior to the launch of any campaign(s). Said deposit shall remain on file at all times. In the case of non-payment, said deposit will be applied to any outstanding amounts owed and all campaigns will be suspended until deposit is replenished. Upon termination of this agreement, any unused portion of the deposit will be returned to Customer within seven (7) business days.
5.1 Customer will pay Agency for Units delivered within seven days of the date Customer receives an invoice or tracking statement from Agency unless otherwise stated in Insertion Order. Generally speaking, Agency will provide such invoice and tracking statement for a seven (7) day period ending on a Thursday at midnight. In the event that Agency does not receive a written notification of a disputed bill, with rationale and support specifically set forth therein, within seven days from the date the invoice was sent to Customer, the invoice will be deemed valid and payable and may not thereafter be disputed. Customer specifically agrees that this provision is reasonable and that Agency will rely upon this provision in making payments to participants on the Internet, including Third-Party Providers, unless otherwise specified in the Insertion Order.
5.2 In the event that Customer fails to pay the full amount of an invoice, Agency, in its sole discretion, may remove the Advertisement from the Internet and/or terminate this Agreement without notice to the Customer.
5.3 Customer acknowledges that Agency has a set policy in dealing with accounts receivable. The following shall be referred to as the Accounts Receivable Collection Policy:
(i) Invoices are due in accordance with established payment terms.
(ii) Invoices will be generated and emailed to you the day following the end of your billing cycle.
(iii) If payment is not received in accordance with the established payment terms, a member of our Sales team will contact you on the next business day to request immediate payment, and will advise you that, if PartnerWeekly does not receive payment within the next seven (7) business days, PartnerWeekly will reserve the right to cap your campaigns at 50% of their normal volume*.
(iv) If payment is not received within fourteen (14) days after which payment is due, a member of our Sales team will contact you on the next business day, and will advise you that unless PartnerWeekly receives payment within the following three (3) business days, we will reserve the right, at our sole discretion, to immediately turn off all campaigns until payment is received by PartnerWeekly.
(v) In the event that late payments occur more than two times in any twelve (12) month period, PartnerWeekly reserves the right to require your prepayment for all leads until your credit history has been reestablished. Alternatively, PartnerWeekly reserves the right, if deemed necessary, to terminate the relationship.
*Caps will be lifted and/or campaigns will be turned on only upon receipt of payment in full.
5.4 In the event that Agency has not received payment in full within thirty days of the due date, Customer will pay Agency an additional 1.5% of the outstanding balance per month, or the maximum amount allowable under Nevada law, whichever is less, until the outstanding balance is paid in full, unless otherwise specified in the Insertion Order.
5.5 In the event that Customer is an active Publisher of Agency and fails to provide payment to Company in accordance with this Agreement, Agency reserves the right to off-set any and all amounts owed to Agency under this Agreement from the commissions earned by Customer as a Publisher.
5.6 In the event that Agency must incur expenses related to collection of any outstanding balance and/or late fees, Customer will immediately pay Agency’s reasonable expenses associated with said collection, including, without limitation, reasonable attorney’s and collection agency’s fees.
5.7 For campaigns where confirmation from the consumer may be received after the lead registration date, leads generated during the campaign will continue to be sent to the Customer for up to ten days following the Stop Date. These leads, generated during the term of the campaign, although sent to the Customer after the campaign has ended, are included in the campaign and will be billed accordingly.
6. TERM, TERMINATION, PAYMENT OF MINIMUM CONTRACT PRICE
6.1 This Agreement will continue for the term set forth in the Insertion Order, provided that either party may terminate this Agreement upon seven (7) business days prior written notice.
6.2 The foregoing notwithstanding, the Agency reserves the right to terminate this Agreement immediately, in its sole and absolute discretion, should any of the following events occur:
(i) where Agency, in its sole discretion, determines that the Advertisement is not generating sufficient response to continue to offer it to Third-Party Providers; or
(ii) where Customer violates the payment terms set forth in Article 4.
6.3 Should the time period between the Start Date and the Stop Date set forth in the Insertion Order, to which this Agreement is attached, be for a period longer than 90 days, then and in that event, the Parties hereto agree that either party hereto may, in its sole and absolute discretion, and without cause, terminate this Agreement upon seven (7) days written notice to the other party. Such termination will not relieve the Customer of the obligations to pay any amounts then due and owing to Agency through the effective date of termination.
7. REPRESENTATIONS AND WARRANTIES/NON-SOLICITATION
7.1 Customer represents, warrants, and agrees that the party signing on its behalf has the full corporate right, power, and authority to enter into this Agreement and agrees to indemnify Agency for and hold Agency, its employees and its publisher network, harmless from any damage resulting from breach of this warranty.
7.2 Customer represents and warrants that it has the authority to use any trademark, trade name or copyright appearing on any of its Advertisement(s).
7.3 Customer represents and warrants that it is familiar with the CAN-SPAM Act of 2003, as amended from time to time, and acknowledges that it is the Customer’s sole responsibility to ensure that it is operating pursuant to the CAN-SPAM Act. Customer agrees to provide Agency with up to date suppression files which will be passed on to Third Party Providers who participate in the Advertisement campaign. With respect to the foregoing, Customer acknowledges and agrees to the following:
(i) The suppression file is to be made available online or to be delivered to email@example.com by Monday of each week. If Monday is a holiday, then the suppression list is to be delivered on the preceding Friday or following Tuesday;
(ii) The suppression file must be the most recent, full compilation of all opt-out requests for the offer, not just the most recent records;
(iii) The suppression file must be updated every seven (7) days or sooner;
(iv) Customer must respond to all suppression abuse claims within forty eight (48) hours, including holidays and weekends;
(v) If the above requirements are not met, Agency will:
a. pause the Customer campaign until a future audit determines that Customer is fully CAN- SPAM compliant and their suppression files are accurate and up-to-date;
b. notify Publisher to pause traffic to the campaign; and
c. invoice Customer for average estimated lead revenues (based on the previous thirty six (36) hours) lost for campaign downtime and will be invoiced for lead revenues based off of the previous numbers.
(vi) Agency reserves the right to terminate an advertiser relationship if they fail to meet suppression file requirements and/or CAN-SPAM compliance.
7.4 Section 7.3 is applicable to all Customers for whom Agency is not managing the suppression lists. With respect to Customers who are Agency exclusive advertisers, the requirements of section 7.3 will be ensured by Agency.
7.5 During the term of this Agreement and for six months hereafter, Customer will not knowingly solicit any on-line publisher, website, or email provider that is affiliated with Agency. In the event that Customer directly contracts with such affiliate or in any other way violates this Agreement then Customer will pay Agency an additional commission equal to what the Agency would otherwise have earned had Customer not violated this section 7.3. If the Customer has an existing relationship with any on-line publisher, website, or email provider that is affiliated with Agency, before entering into this Agreement, the burden is on the Customer to provide Agency with proof by clear and convincing evidence of said relationship before entering into this Agreement.
8. ADVERTISING SOLD “AS IS” AND WITHOUT ANY WARRANTIES WHATSOEVER
8.1 THE ADVERTISING AND OTHER SERVICES PROVIDED BY THE AGENCY HEREIN, THEIR USE AND THE RESULTS OF SUCH ADVERTISING, ARE ALL PROVIDED “AS IS.” AGENCY MAKES AND HAS MADE NO WARRANTIES, EXPRESS OR IMPLIED, AND PROVIDES AND HAS PROVIDED NO GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, TO CUSTOMER, EXCEPT AS EXPRESSLY SET FORTH HEREIN. AGENCY EXPRESSLY DISCLAIMS ANY WARRANTY WHICH MIGHT OTHERWISE BE IMPLIED BY LAW, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR OF FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT. AGENCY DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES, OR THE ABILITY TO CONVERT ANY ADVERTISING TRANSMITTED PURSUANT TO THIS AGREEMENT, OR THE RESPONSES THERETO, INTO SALES. AGENCY MAKES NO REPRESENTATION WHATSOEVER WITH RESPECT TO THE POTENTIAL FOR ANY SALES BEING PROCURED AS A RESULT OF THE ADVERTISING SERVICES PROVIDED HEREUNDER. AGENCY DOES NOT WARRANTY OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF ANY RECIPIENT OF OR RESPONDENT TO THE ADVERTISING. AGENCY DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE, OR SCREEN DESIGN WITH THE REQUESTED ADVERTISING SUBMITTED. ALL ORDERS ARE CONTINGENT UPON AGENCY’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS, AND THE AGENCY IS NOT RESPONSIBLE FOR DELAYS CAUSED BY FAILURE TO LOCATE A THIRD-PARTY PROVIDER WILLING TO ACCEPT THE ADVERTISEMENT OR PROMOTE, DISPLAY, OR OTHERWISE TRANSMIT THE ADVERTISEMENT, AND, FURTHER, AGENCY IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. AGENCY UNDERSTANDS AND AGREES THAT IT IS REQUIRED TO MAKE A GOOD FAITH EFFORT TO MEET SCHEDULED DELIVERY AND ON-LINE DATES, BUT MAKES NO GUARANTY AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SUCH DATES.
9. LIMITATION OF LIABILITY
9.1 UNDER NO CIRCUMSTANCES WILL AGENCY BE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF AGENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR WHERE SUCH DAMAGES ARE OTHERWISE FORESEEABLE) ARISING FROM ANY BREACH OF THIS AGREEMENT. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LIABILITY OF THE AGENCY TO CUSTOMER FOR ANY CLAIMED BREACH OF THIS AGREEMENT WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO AGENCY UNDER THIS AGREEMENT. THIS SAME LIMITATION WILL ALSO APPLY TO ANY OTHER CLAIM BY CUSTOMER AGAINST AGENCY ARISING FROM ANY ASPECT OF THIS AGREEMENT, OR ANY CLAIMED ACT OR OMISSION OF AGENCY HEREUNDER. AGENCY WILL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY “LOST PROFITS” OR OTHER SIMILAR CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES SOUGHT BY CUSTOMER HEREAFTER OR FOR ANY OTHER DAMAGES BEYOND A REFUND OF THE AMOUNTS PAID BY CUSTOMER TO AGENCY HEREUNDER. AGENCY WILL IN NO EVENT BE LIABLE OR RESPONSIBLE FOR ANY ACT, BREACH, OR OMISSION, OF ANY NATURE WHATSOEVER, OF THE THIRD-PARTY PROVIDERS WHO AGENCY MAY UTILIZE FOR PLACEMENT, DISPLAY, OR TRANSMISSION OF THE ADVERTISEMENTS OR ADVERTISING SERVICES WHICH ARE THE SUBJECT OF THIS AGREEMENT. NO ACTION, SUIT, OR PROCEEDING WILL BE BROUGHT BY CUSTOMER OR ANYONE ACTING ON CUSTOMER’S BEHALF OR AS AN ASSIGNEE OR SUCCESSOR IN INTEREST TO CUSTOMER, AGAINST THE AGENCY, FILED MORE THAN ONE YEAR AFTER THE STOP DATE REFERENCED IN THE ADVERTISING INSERTION ORDER TO WHICH THIS AGREEMENT IS ATTACHED.
9.2 Agency makes no representations or warranties to Customer that the performance of its obligations under this Agreement will produce any level of profit or business or that any defined action will lead to further conversions or economic benefit for the Customer. Agency warrants that it will perform its services in a competent and workmanlike manner. Agency does not warrant that it will be able to perform its services error free or without interruption
10.1 Each party will defend, indemnify, and hold the other party and its officers, directors, agents, affiliates, distributors, franchisees, and employees harmless from and against any and all third party claims, losses, damages, actions, liabilities, expenses, or costs (including, without limitation, reasonable attorney’s fees) arising out of any claim, demand, action, suit, investigation, arbitration, or other proceeding by a third party out of the indemnifying party’s material breach of any duty, representation or warranty.
10.2 Customer is solely responsible for any legal liability arising out of or relating to:
(i) the Advertisement; and/or
(ii) any material to which a User can link through the Advertisement, provided that such Advertisement has not been altered or modified in any material way by Agency notwithstanding Article 2 of this Agreement.
10.3 Customer will be responsible for any costs and/or fees related to and/or arising out of “spam” complaints related to the delivery of email and/or management of the Advertisement(s). Such responsibility shall be limited to complaints which arise from the content of each Advertisement provided by Customer as set forth in this Agreement, including but not limited to the requirements set forth is Section 2.2. Any costs and/or fees charged to Agency by its internet Service Provider for costs related to responding to and/or managing allegations of “spam” will be borne exclusively by the Customer. Notwithstanding the foregoing, Agency reserves the right to respond to any such allegations, and the Customer agrees to compensate Agency for all related expenses including, but not limited to, reasonable attorney’s fees.
10.4 Customer will indemnify, defend, and hold harmless Agency and its officers, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits, or proceedings for the following:
(i) any libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement, or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with the Advertisement, including, without limitation, any action brought pursuant to anti-spamming legislation, or any other legislation related to Internet advertising or electronic advertising, or electronic commerce passed by any local, state, or federal government, foreign government, or other jurisdiction, and Customer further agrees to indemnify and hold Agency harmless from any litigation resulting from any emails that have been sent on behalf of the Customer, whether sent directly by Agency, or by a Third-Party Provider of Agency;
(ii) any material breach by Customer of any duty, representation or warranty under this Agreement;
(iii) any material breach by Agency of any duty, representation or warranty under Agreement to place the Advertisement on the Internet due to any breach by Customer of this Agreement; or
(iv) any damages resulting from a contaminated file, virus, worm, or Trojan horse originating from the Advertisement ; or
(v) relating to any spyware used by or on behalf of advertiser.
10.5 The Indemnified Party, with the Indemnifying Party and its counsel in the defense, will have the right, but not be required, to participate fully, at its own expense, in the defense of such Action. If a dispute arises over whether the party requesting indemnification hereunder is so entitled, the party requesting indemnification will be free, without prejudice to any of such party’s rights hereunder, to compromise or defend such Action. The parties agree that if the party requesting indemnification decides to defend such Action it will have control of the defense. Any compromise or settlement of an Action will require the prior written consent of both parties hereunder; such consent will not be unreasonably withheld or delayed.
11. GENERAL MATTERS
11.1 The failure of either party to insist upon or enforce strict performance by the other party of any provision of the Agreement or to exercise any right under the Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
11.2 Neither party will be liable for, or considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement, except with respect to payment obligations as set out in Article 4, as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence, including without limitation, the failure of any Third-Party Provider to display or place an Advertisement; provided that the non-performing party gives reasonably prompt notice under the circumstances of such conditions to the other party.
11.3 The parties to the Agreement are independent contractors. Neither party is an agent, representative, partner, employee, or joint venture of the other party. Neither party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party. The Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the parties or to impose any liability attributable to such a relationship upon either part. Customer is prohibited from issuing any press release or public announcement, distribute any marketing or promotional materials or otherwise make any public communications regarding this Agreement or your relationship with Agency.
11.4 Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement will survive and remain in effect after such happening.
11.5 Each party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks, both known and unknown, associated with the transactions contemplated hereunder. Further that all provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement;
(i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and
(ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
11.6 Except as otherwise specified, the rights and remedies granted to a party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity.
11.7 This Agreement includes any attached Insertion Order(s) as a material part. The Agreement constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the parties with respect to the transactions set forth herein. In the event that Agency is required to digitally sign or agree to additional terms when using Customer’s web site, both Customer and Agency acknowledge and agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot quickly be altered, in order to view stats and/or access creative or other campaign materials or details. Therefore any terms which appear on Customer’s website shall be disregarded and deemed ineffective, being superseded by this Agreement as signed by both Parties.
11.8 This Agreement will be fully binding upon, and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns.
11.9 The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement.
11.10 This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document.
11.11 This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Nevada, without regard to any conflicts of laws principles. Each party irrevocably consents to the exclusive jurisdiction and venue of the state courts of the State of Nevada situated in Las Vegas, Clark County, Nevada, and the federal courts situate in the United States District Court for the District of Nevada, located in Clark County, Nevada, in connection with any state or federal action arising under this Agreement.
11.12 All notices, requests, demands, and other communications hereunder will be in writing and will be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, or received via email or confirmed facsimile to the following addresses or at such other address for a party as specified by like notice: