Deliverables. To the extent not already delivered, each Party shall immediately deliver to the other Party the following deliverables as of the Effective Date:
- a copy of this Agreement executed by such Party;
- the name of such Party’s authorized and appointed representative who possesses appropriate decision-making authority for conducting business described in, related to and arising from this Agreement on behalf of such Party; and
- contact information for a liaison of such Party whom the other Party may contact and notify of matters described in, related to and arising from this Agreement, which liaison may be the same individual identified in Section 1(b) above; and
- an executed W8 and/or W9, as applicable.
Publisher Services. As of the Effective Date, Publisher agrees to the following:
The term “Insertion Order(s)” or “IO(s)” means a specific amendment to this Agreement between the Parties governing specific marketing campaigns and the “Billable Actions” by which ASG agrees to pay Publisher a fee for performance based advertising campaigns which are to be codified in writing (email shall suffice) for each respective subsequent Billable Actions. Billable Actions are further defined in Section 3 below.
To deliver or cause to be delivered to ASG the online media services set forth in the Insertion Order (the “Publisher Services”) until the obligation to provide the Publisher Services are terminated in accordance with the Insertion Order, or the provisions in Section 24 (Term and Termination) of this Agreement.
Written communications containing the same information from an authorized representative of ASG shall serve as evidence of fees for an IO. At all times, Insertion Order(s) or IO(s) are governed by and superseded by the Terms of this Agreement.
The Publisher agrees that all Publisher Services will be provided (a) utilizing websites that are owned, operated or controlled by the Publisher and unless otherwise prohibited by the IO, its affiliates and/ or Sub-Publishers as hereinafter defined (“Publisher Websites”) and (b) databases owned, operated or controlled by the Publisher and its affiliates and/ or Sub-Publishers (“Publisher Databases”); provided, however, that Publisher shall always remain responsible for the timely and proper completion of Publisher Services, whether delegated or not, according to the terms of this Agreement. A “Sub-Publisher” shall mean a business associate of Publisher that participates in or performs any activities of the Publisher under this Agreement. Only Publisher Websites and Publisher Databases that have been approved by ASG may be utilized in connection with the provision of Publisher Services. Publisher shall, within two (2) business days of the campaign start date on the IO, provide confirmation to ASG, in writing, that delivery of the Publisher Services have begun. Publisher shall be solely responsible for the development, operation and maintenance of the Publisher Websites, Publisher Databases and Publisher E-mails and for any and all materials that appear therein. Such responsibilities include, without limitation, the technical operation of the Publisher Websites, Publisher Databases, Publisher E-mails and all related equipment creating and posting content, descriptions and references on or through the Publisher Websites and Publisher E-mails; and, the accuracy and propriety of materials posted on or through the Publisher Websites and Publisher E-mails.
In the delivery of Publisher Services, Publisher shall use and will cause its affiliates and Sub-Publishers to, use any Advertisement (“Ad”) provided by ASG in strict compliance with the terms of this Agreement, and any IO. Moreover, Publisher shall not engage and will cause its affiliates and Sub-Publishers not to engage in any Non-Approved Activities as defined in Section 25 of this Agreement.
Publisher shall not, and will cause its affiliates and any Sub-Publisher not to, modify, edit, resize or otherwise alter any Ad in any way without prior written approval from ASG.
Publisher shall provide ASG with ten (10) business days prior notice of any changes to any Publisher Website or Publisher Database that would affect the target audience or affect the size or placement of the Ad specified in the IO. If the Publisher fails to provide such notice, ASG may immediately cancel the remainder of the affected placement and suspend any payments earned subsequent to the change without penalty to ASG.
Payment Method, Terms and Conditions.
Fees shall be paid to Publisher in United States Dollars (USD). Payment shall be made via bank wire, Automated Clearing House (ACH), or check. All bank wire transfers are subject to a fee which shall be deducted (hereinafter the “Bank Wire Fee”) from the gross amounts of the Fee for Billable Actions owed to the Publisher, prior to initiating payment by ASG.
“Billable Actions” shall be further defined as Cost-per-Action or Cost-per-Sale (“CPA”), Cost-Per-Click (“CPC”), Cost-Per-Thousand-Impressions (“CPM”), Cost-Per-Open (“CPO”), Revenue Sharing Opportunities (“Rev Shares”), or Cost-per-Lead (“CPL”) campaigns, and shall be tallied upon the final billable counts of actions generated, as specified below, in the applicable campaign and defined in the IO.
Unless otherwise specified these Billable Actions are calculated as follows:
Cost-Per-Action (“CPA”), Cost-Per-Open (“CPO”) or Cost-Per-Lead (“CPL”), shall be calculated by multiplying the number of billable actions generated by Publisher by the agreed upon cost per unit rate for the applicable campaign. Billable Actions in CPA, CPO and CPL campaigns shall be based upon ASG final billable counts of actions generated, as specified in the applicable campaign and defined in the IO.
Fees for any Cost-Per-Click (“CPC”) or Cost-Per-Thousand-Impressions (“CPM”) campaigns set forth in the IO shall be based upon actual delivery as reported by ASG’s tracking systems unless otherwise indicated in the IO.
Revenue Sharing (“Rev Shares”) shall be calculating by dividing the gross amount of a sale or donation by a pre-determined percentage detailed in the IO.
At the completion of each campaign event or IO, the Vendor shall provide to ASG written detailed reports of all activities associated with all applicable advertising campaigns through the Publisher’s email system or display ad sever (hereinafter “Delivery Reports”). Delivery Reports shall include deployment rates, delivery rates, open rates, click-through rates, unsubscribe rates, forward rate, with both the “unique” and “total” counts, each where available. If a display or other advertising campaign, the PUBLISHER shall include the number of actions, impressions attempted or delivered including all unique and total counts. Delivery Reports shall be provided on or before three (3) days following the completion of the advertising campaign (e.g. an email deployment or display advertising campaign after all emails deployed or all estimated impressions were provided).
Fees for Publisher Services shall be payable as set forth on the IOs. In the event of a dispute regarding the reports provided by the Publisher, or any invoices associated therewith, the Parties shall proceed under Section 23, below.
If not specified in an IO, Fees for Publisher Services shall be payable upon all Publisher Services obligations having been met (including Delivery Reports provided to ASG), payment was received by ASG from the Advertiser, and proof of Billable Actions has been provided to ASG. If not provided through other means (e.g. Affiliate Tracking Systems, ecommerce/Donation system or pixel tracking), ASG will provide Publisher reports detailing activity at the end of each campaign, event or calendar month, whichever ASG deems most practical.
Once the obligations detailed in Section 3(f) above have been met, payments for Billable Actions shall be payable to Publisher thirty (30) days after the last day of a Revenue Period without the necessity of an Invoice for all non-CPM or Rev Share based activity. A “Revenue Period” shall be defined as a calendar month. ASG shall only furnish payments due to Publisher that exceed twenty ($20) USD (“Minimum Payment Threshold Amount”) during a Revenue Period. Any fees due to Publisher not exceeding the Minimum Payment Threshold Amount during an initial Revenue Period shall be withheld and paid, subject to the terms and conditions of this Agreement, upon the earlier of (i) the first month payment is due after the Minimum Payment Threshold Amount is attained; (ii) six (6) months following a Revenue Period whereby the amount owed to Publisher has not exceeded the Minimum Payment Threshold Amount or, (iii) within fifteen (15) business days following the expiration or termination of the Agreement.
A Budget Cap is the limit placed on a Publisher it can earn for Billable Actions in an individual campaign, Revenue Period or IO (hereinafter “Budget Cap”). The Budget Cap will be disclosed, when applicable, in an IO. Fees due to Publisher shall not be paid if Publisher exceeds the Budget Cap on the campaign as set forth in the IO, or if termination of this Agreement is based upon Publisher’s breach of the terms of this Agreement, or the representation and warranties given hereunder, including, but not limited to, the commission of non-approved activities by Publisher, its affiliates or any Sub-Publisher.
The Publisher agrees that at all times, it shall maintain accurate records relating to this Agreement. During the Term of this Agreement, and for a period of two (2) years thereafter, ASG shall have the right to inspect and audit Publisher’s books and records relating to same. If any such audit or inspection discloses a breach of the terms of this Agreement by Vendor, Vendor shall pay for the cost of such audit and ASG shall be entitled, at its sole discretion, to: (a) terminate all agreements in effect between Publisher and ASG; (b) recover money damages, including but not limited to, the amount of any payment made to Publisher in connection with the Agreement and arising out of the breach, and/or (c) pursue any and all other remedies that ASG may have at law or in equity.
Confidential Information. The term “Confidential Information” shall mean any and all information of any kind, whether written or oral, in print or machine readable form or in any other media including, without limitation, any documentation and/or information made available or disclosed by either Party to the other Party or obtained by either Party through observation or examination of information obtained from the other relating to (i) this Agreement and the negotiations by and among the Parties, and/or (ii) the business operations of any Party including, without limitation, any trade secrets, as that term is defined in Fla. Stat. § 688.002(4) and to include, without limitation, “online advertising opportunities” such as e-mail list rentals, names of lists/website properties and related pricing each of which have been developed by the respective Parties, any formulas, patterns, compilations, programs, devices, methods, techniques or processes, and any flow charts, vendors and vendor lists, business terms of vendor agreements, samples, structures, models, ideas, concepts, procedures, documentation, financial information or projections, mail lists or customer lists, business or marketing opportunities, plans, techniques or ideas, including the use of internet marketing and/or email lists (with related web properties) or other confidential business information relating to past, existing or future plans or developments for operations, any information pertaining to the financial condition, methods of operations, assets, systems, procedures, employees, independent contractors, agents, joint ventures, charges or other customer information of a Party. Confidential Information shall expressly include the selected clients and vendors that shall be disclosed upon signing this Agreement, which may be added as Exhibit A, attached hereto and incorporated by reference herein as well as any subsequent Exhibits, emails communicating the same information, and clients who utilized the services of Vendor through ASG, all of which may be attached hereto and incorporated by reference herein.
Exception to Confidential Information. Notwithstanding the foregoing, “Confidential Information” shall not include information which (i) is or becomes generally available to the public, other than as a result of a breach by a Party of its obligations hereunder, (ii) is or becomes available to a Party on a non-confidential basis prior to its disclosure to such Party by the other Party or its representatives, or (iii) becomes available to a Party on a non-confidential basis from a source other than the other Party or its representatives. Notwithstanding the foregoing, the Parties acknowledge that the assembling of and aggregating disparate public information such as individual e-mail lists, contact information and pricing information shall constitute Confidential Information.
Non-Disclosure of Confidential Information. In consideration of each Party disclosing Confidential Information to the other Party, each Party agrees that it shall:
- Maintain the confidentiality of the Confidential Information disclosed to the other Party. In this regard, the Parties agree that any disclosure of the Confidential Information among its employees or agents will only be to those employees or agents reasonably necessary to carry out the purposes of this Agreement and the Parties shall ensure against any such improper disclosure by taking such steps as may be necessary to protect the rights of the other Parties in the Confidential Information;
- Not duplicate or use any Confidential Information for any purpose other than the purposes described in this Agreement;
- Not use any advantages derivable from the other Party’s information in its own business or affairs unless otherwise agreed in a written agreement with the other Party.
- Use best efforts to prevent inadvertent disclosure of the other Party’s information to a third Party; and
- Cooperate with the other Party executing this Agreement, in obtaining a protective order or other remedy upon request, if either Party is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or documents, subpoenas, criminal or civil investigative demand or similar process, or by any applicable law or any applicable rule or regulation of any governmental, administrative or regulatory agency) (a “Requested Party”) to disclose any of the Confidential Information. The Requested Party shall provide or cause the provision of, prompt written notice, within five (5) calendar days, of such request or legal compulsion to the other Party so they may seek a protective order or other appropriate remedy, or waive compliance with this Agreement. If such protective order or other remedy is not issued, then the Requested Party shall furnish, and shall cause the person who is so requested or legally compelled to disclose such Confidential Information to furnish only the portion of such Confidential Information which is legally required, and shall exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be afforded to such Confidential Information once disclosed including but not limited to “in camera inspections” by a tribunal or special master as well as confidentiality orders that place all information “under seal” in any litigation, whether pending or final, and shall limit those Parties permitted to view Confidential Information. This shall not be considered a waiver of ownership of the records or of the protections afforded to either Party entering this Agreement, in this section or the confidentiality of the Confidential Information or the remedies afforded to either Party, hereby for any improper utilization. After conclusion of the proceedings all documents provided by the Requested Party shall be returned to the originator of said information.
Use of Confidential Information. The Parties acknowledge and agree that the Confidential Information constitutes confidential, non-public information in which the respective Parties have a sole proprietary and legitimate business interest. The Parties acknowledge and agree that the Confidential Information will be utilized only for the purposes of discussing a proposed business arrangement regarding email list rentals. Unless and until a formal, subsequent Agreement is signed, neither Party shall have a right to utilize Confidential Information disclosed pursuant to the foregoing negotiations. Without the written consent of the affected Party, no Party or parent, subsidiary, affiliate, employee, officer, director or manager, shareholder or member, principal, broker, associate, client or other representative shall disclose, divulge, utilize, disseminate, distribute, copy, sell or otherwise exploit or dispose of directly or indirectly, for any purpose whatsoever, at any time during or following the termination of discussions regarding this Agreement or otherwise, any of the Confidential Information. Furthermore, Vendor shall not use any advantages derivable from ASG’s Confidential Information in its own business or affairs or those of its parent, affiliates or subsidiaries, unless the same is pursuant to an agreement in writing with ASG.
Return of Information. Unless otherwise agreed in writing, both Parties agree that, upon completion of its review of the other Party’s information, intellectual property, business records and/or other Confidential Information, both Parties will immediately surrender to the other Party all originals and all copies made of any of the other Party’s information (confidential or otherwise), computer disks, cassettes, videocassettes, compact disks, papers, notes, documents, agreements, writings, software, equipment and other property given by one Party to the other Party or coming into the other Party’s possession by, through, or as a result of its review of the other Party’s records. Both Parties further agree to permanently erase any and all of the other Party’s information stored in memory on any of the Parties’ computers or other electronic or other storage mediums. Both Parties further expressly agree, understand and acknowledge that, for the purposes of this Agreement, all such information and materials shared with the other Party are at all times the sole and exclusive property of Party sharing the information and/or materials.
Non-Solicitation. ASG and Vendor acknowledge and agree that the association and relationship between the Parties is one of trust and confidence and that such association and relationship would not have been offered or otherwise continued but for the fact that such trust and confidence had been reposed by each Party in the other Party. In view of said association and relationship, each Party agrees that, during the Term and as provided in Section 16 below, each Party shall not, in the other Party’s area of market coverage or in any licensee’s to the said intellectual property, patent(s) or patent application(s) market coverage area, either directly or indirectly solicit or divert, or take away or attempt to take away, any of the other Party’s employees, independent contractors, suppliers, vendors, or list owners from the other Party or any of its affiliates or licensees, any customer or client of any of them with a competitive product, service or technology. Furthermore, the Parties agree that the managerial employees and staff are valuable assets to each respective Party, and that, if such employees or agents were working for others, including, without limitation, the other Party or another competing business, the Party would sustain substantial loss and harm, the dollar amount of which damage would be difficult, if not impossible to identify, and others, including competing businesses, may obtain an unfair competitive advantage. Therefore, each Party agrees that it shall not, during the Term and as provided in Section 24 below, (i) solicit, recruit, retain, hire, employ, or contract for or attempt to solicit, recruit, retain, hire, employ or contract for the services, whether for compensation or not, of any executive, manager, or any other employee or agent of the other Party, or (ii) persuade, influence, counsel or encourage or attempt to persuade, influence, counsel or encourage any such person to resign from or terminate or modify any relationship with the other Party.
Non-Circumvention. During the Term of this Agreement and any applicable restriction period thereafter as stated in this Agreement, Vendor shall not, directly or indirectly, act in any manner to usurp or circumvent the purpose of this Agreement, including in any way benefiting from ASG’S clients, prospective clients communicated to Vendor in writing, client lists, list owners, digital publishers, data sources, list managers, managed properties, online advertising services, lists presented for proposals, media sources, vendors, vendor lists, in each case without the prior written consent of ASG. The Parties may select to add clients and vendors as Exhibit A, and may be incorporated by reference herein as well as any subsequent Exhibits, emails communicating the same information (including emails demonstrating prospective clients ASG may bring Vendor), and clients who utilized the services of Vendor through ASG, all of which may be attached hereto and incorporated by reference herein.
Irreparable Harm. ASG and Vendor hereby acknowledge and agree that all of the covenants and promises contained herein are necessary for the protection of their business, trade secrets, goodwill, contacts, customers, clients and potential purchasers, and that any violation of the terms hereof may result in losses or damages which may not be readily susceptible of determination. In addition to and not in lieu of all other remedies available to a Party hereunder, in the event of a breach or threatened breach of this Agreement by any Party, the other Party shall be entitled to the equitable remedies of preliminary restraining order, injunctive relief and/or specific performance. In this regard, the Parties acknowledge and agree that the damages to any Party in the event of a breach of this Agreement may be difficult, if not impossible, to identify and each Party waives any and all rights that it may have to assert a defense that another Party has an adequate remedy at law. Furthermore, each Party shall be entitled to injunctive relief, specific performance and/or other equitable remedy without the necessity of posting a bond, cash or otherwise, except as otherwise required by applicable federal or state law. The breaching Party shall be liable to pay all costs, including attorneys’ and paraprofessionals’ fees and expenses, which are incurred in enforcing, to any extent, any of the provisions of this Agreement, whether or not litigation has actually commenced and, if so commenced, through all trial and appellate proceedings.
Indemnity. Publisher agrees to defend, indemnify and hold harmless ASG, its Advertisers and each of its officers, directors, employees, agents, and affiliated entities from and against all damages, liabilities, costs and expenses, including, but not limited to attorney’s fees, resulting from any claim, action or proceeding arising out of or related to: (a) Publisher, its affiliates or any Sub-Publisher’s use of Ads in breach of this Agreement or any written instruction provided by ASG (b) any third Party claim related to Publisher Websites, Publisher Databases, Publisher E-mails and/or Publisher marketing practices; (c) any content, goods or services offered, sold or otherwise made available through Publisher Websites, Publisher E-mails or otherwise; (d) any claim that ASG is obligated to pay any taxes in connection with payment made to Publisher in connection with the Agreement;(e) Publisher’s breach of this Agreement and/or any representation or warranty contained herein; and/or (f) the acts and/or omissions of its affiliates of Vendor or any Sub-Publisher.
ASG agrees to indemnify Publisher, its officers, directors, employees, and agents, from and against damages Publisher shall become legally obligated to pay to a third-Party that are actually incurred as a result of ASG’S breach of this Agreement.
A Party seeking indemnity (an “Indemnified Party”) shall provide the Party from whom indemnity is sought (an “Indemnifying Party”) with prompt written notice of all material facts constituting the claim. Any failure to give prompt notice shall not waive the Indemnified Party’s right to indemnity except to the extent that the Indemnifying Party’s rights have actually been prejudiced thereby. Neither Party shall settle a claim without the written consent of the other, which consent shall not be unreasonably withheld. ASG may withhold any fees due and owing to Publisher under this Agreement to offset any costs incurred for which Publisher is obligated to indemnify ASG, including, but not limited to, attorney’s fees and any judgment obtained by a third-Party against ASG.
Representations, Warranties and Covenants. ASG represents and warrants that it is authorized to enter into this Agreement. Publisher represents and warrants that:
it shall comply, and cause its affiliates and any Sub-Publisher to comply, with all applicable international, federal, state and local laws, rules and regulations in the performance of the Publisher Services under this Agreement;
its Publisher Websites, Publisher Databases, Publisher E-mails and all linked content are, and shall remain at all times during the Term hereof, in compliance with all applicable foreign, federal and state laws, including, but not limited to, the Federal Trade Commission Act, the Telephone Consumer Protection Act of 1991, as amended (TCPA), the Federal Communications Act, COPPA, CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), applicable Federal Trade Commission implementing regulations and any and all foreign, federal and state deceptive trade practices legislation, and do not (i) contain any investment or money-making opportunities or advice not permitted by applicable laws, rules and regulations; (ii) contain any gratuitous violence or profanity; (iii) contain any material that defames, libels, abuses or threatens physical harm to others or that is illegal; (iv) contain any explicit, vulgar or obscene language; (vi) contain or post to any sexually explicit images or other offensive content; (v) promote adult services (vi) promote illegal substances, illegal or unethical activities or (vii) promote software piracy;
for all campaigns involving Email Marketing, Vendor shall not, and shall cause its affiliates and any Sub-Publisher not to, send unsolicited bulk e-mail (i.e., SPAM) or otherwise violate any of the provisions of CAN-SPAM and that it will comply, and shall cause its affiliates and any Sub-Publisher to comply, with the requirements detailed in the “Mail Marketing Terms” below.
Mail Marketing Terms:
Advertisement Label: Each commercial E-mail shall contain a clear and conspicuous notice that the message is an advertisement or a solicitation unless a recipient has expressly consented to its receipt.
Opt-Out Notice: Each commercial e-mail shall display conspicuously a clear notice which details how, whether through a return e-mail address or another Internet based tool, recipients can request not to receive further messages from the sender. The opt-out mechanism described in each commercial e-mail shall be effective for at least thirty (30) days following the original date the e-mail is transmitted. If a recipient requests not to receive commercial e-mails, the sender or any person acting on behalf of the sender will not, more than ten (10) business days after receipt of the opt-out request, send or assist another in sending to that recipient, any e-mail that falls within the scope of the opt-out request. Once an opt-out request is received from a recipient of a commercial e-mail, sender shall not disclose to any third Party such recipient’s e-mail address.
Include Accurate and Non-Misleading Headers: Publisher shall not, and will cause its affiliates and any Sub-Publisher not to, send an e-mail with header information (e.g., sender name and e-mail address, domain name, and subject line) that is materially false or misleading, i.e., altered or concealed in a manner that impairs the ability of others to identify, respond to, or locate the sender or to investigate the alleged violation. This shall include sending an e-mail with header information that is technically accurate, but which was obtained by false pretenses.
No Deceptive Subject Headings: Publisher shall not, and will cause its affiliates and any Sub-Publisher(s) not to send a commercial e-mail if it knows (or even if such knowledge may be implied on the basis of objective circumstances) that the message’s subject heading is likely to mislead recipients as to the contents or subject matter of the message.
Vendor shall not, and will cause its affiliates and any Sub-Publisher not to, use any Suppression Lists provided hereunder for any purpose unrelated to this Agreement. Publisher shall, and will cause its affiliates and any Sub-Publisher to, promptly destroy, or cause such Suppression Lists to be promptly destroyed, upon completion of the suppression. Publisher shall not, and will cause its affiliates and any Sub-Publisher not to, remarket, resell or otherwise distribute any Suppression List received from ASG or its Advertiser to any other Party for any purpose other than to permit suppression against existing email lists in connection with Publisher’s obligations under this Agreement. Publisher shall, and will cause its affiliates and any Sub-Publisher to, scrub its email distribution list against Suppression Lists provided for purposes of carrying out this Agreement at least once every ten (10) days.
Vendor shall not, nor knowingly permit any person to, use ASG and/or its Advertiser’s trademarks, trade names, copyrights, service marks, domain names and any visual representations thereof, including logos, designs, images, trade dress and any other publicity rights or indicia of ownership contained therein except as permitted to provide the Publisher Services hereunder;
Vendor is not, nor does it act on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”). In addition, it is not, nor does it act on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time;
There is no pending or, to the best of Publisher’s knowledge, threatened claim, action or proceeding against Publisher;
Vendor is authorized to enter into this Agreement and Publisher’s execution, delivery and performance of same will not conflict with or violate: (i) any provision of law, rule or regulation to which Publisher is subject; (ii) any order, judgment or decree applicable to Publisher; (iii) any provision of Publisher’s corporate by-laws or certificate of incorporation, if applicable; or (iv) any agreement or other instrument applicable to Publisher; and
Vendor owns, or has the legal right to use and distribute, all content, copyrighted material, products and services displayed on and/or through Publisher Websites and Publisher E-mails.
In addition, Publisher agrees as follows:
Non-Approved Activities.
In rendering the Publisher Services, Publisher shall not, nor knowingly permit any person to, activate advertisements or inflate the amount of Billable Actions or other fee generating events through any illegal, deceptive or misleading practice, method or technology, including, but not limited to: the use of any spyware, device, program, robot, frames, hidden frames, redirects, spiders, computer script or other automated, artificial or non-approved methods designed to appear like an individual, real live person performing a fee generating event. Furthermore, the Publisher, its affiliates and any Sub-Publisher(s) may not establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points, incentives or other compensation to be earned in connection with Billable Actions or fee generating events, or otherwise attempt to induce online users to click on any of the Advertisements through use of any other incentives, without obtaining the prior written approval of ASG.
ASG actively monitors traffic, Billable Actions, fee generating events, and other campaign related activities for non-approved activities. It is expressly understood and agreed to by Publisher that, if ASG or its Advertiser suspects that non-approved activities are occurring through Publisher Websites, Publisher Databases, Publisher activities and/or Publisher E-mails, that the campaign may be immediately suspended with no prior notice to Publisher pending further investigation. Where Publisher is notified of suspected non-approved activities, it is Publisher’s burden to establish to the satisfaction of ASG and the Advertiser, that neither it, nor its affiliates or any Sub-Publisher(s) has engaged in non-approved conduct. ASG will withhold payment of Publisher’s fees until Publisher has met its obligation hereunder without penalty to ASG. However, should the investigation establish that Publisher, its affiliates or any Sub-Publisher(s) used non-approved means of traffic generation to add leads, clicks or other Billable Actions or fee generating events as determined solely by ASG, which determination shall be binding upon Publisher, ASG may immediately terminate all agreements in effect between Publisher and ASG without penalty to ASG. Upon ASG’s determination of non-approved activities, the Publisher shall (a) forfeit all fees due under any agreement in effect with ASG (not just those fees associated with the non-approved activity); (b) reimburse ASG for all fees received under the campaign associated with the non-approved activity; (c) reimburse ASG for any balance of actual damages sustained by ASG or the Advertiser after offset for monies retained as referenced above (in sub-section (a) herein) and monies recouped as referenced above (in sub-section (b) herein). Publisher’s payment obligations hereunder shall survive termination or expiration of the Agreement. Nothing contained herein shall restrict or otherwise limit any and all other remedies that ASG may pursue against Publisher at law or in equity.
Licenses. The Parties agree that all intellectual property rights owned by ASG or its Advertisers shall remain their respective property. During the Term of the Agreement, ASG grants Publisher, its affiliates and any approved Sub-Publisher, a non-exclusive, royalty-free, worldwide license to use and display all Ads delivered in accordance with the terms of the Agreement together with the trademarks, trade names, copyrights, service marks, domain names and any visual representations thereof, including logos, designs, images, trade dress and any other publicity rights or indicia of ownership contained therein. No part of ASG or its Advertisers intellectual property may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. Publisher shall not, and will cause its affiliates and any Sub -Publisher not to, use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer ASG or its Advertisers intellectual property or any portion thereof. ASG reserves any rights not explicitly granted to Publisher in this Agreement. Except as otherwise provided herein, nothing contained in this Agreement shall be deemed or construed as a grant to the other Party of any right or license under any patent or other rights of the furnishing Party or any other Person or any other right or license to use any of the Confidential Information for any purpose other than in connection with the purposes of this Agreement or any other written agreement between the Parties.
Reasonableness. PUBLISHER and ASG acknowledge and agree that (a) this Agreement contains reasonable limits as to time, geographical area and scope of activity to be restrained, (b) any restraints imposed upon PUBLISHER are not greater than is necessary to protect the goodwill and other business interest of ASG, and (c) any restraints imposed upon ASG are not greater than is necessary to protect the goodwill and other interests of ASG or its Advertisers. The Parties further agree that the non-competition aspects of this Agreement are ancillary to its otherwise enforceable nondisclosure and non-circumvention aspects.
Assignment. This Agreement may not be assigned by either Party unless pursuant to a written agreement executed by both Parties; provided, however, that ASG reserves the unilateral right to assign its rights to collections under and pursuant to this Agreement or any collateral arrangement of the Parties.
No Waiver. The failure of either Party to insist upon strict compliance by the other Party with one or more covenants and restrictions contained herein, whether on one or more occasions, shall not be construed as a waiver, nor shall such a course of action deprive either Party of the right thereafter to require strict compliance herewith. If the Parties hereto waive any of the conditions, terms or provisions contained herein, or any duties or obligations of the other Party hereunder, such waiver shall be effective only if in writing and signed by the Party waiving any such item.
Cumulative Rights. The rights and remedies set forth in this Agreement are cumulative of all other rights and remedies existing at law or in equity, and shall not be deemed to deprive either Party of any such other legal or equitable right or remedy, by judicial proceedings or otherwise, necessary or appropriate to enforce the terms, provisions, conditions and covenants contained in this agreement, or the utilization of any remedy hereunder, or otherwise, and shall not prevent the concurrent or subsequent utilization of any other appropriate remedy or remedies.
Amendment. No waiver, modification or amendment of the terms of this Agreement shall be of any force or effect unless made by an instrument in writing and executed by all Parties hereto. If any agreement or restrictive covenant contained herein should be held by any court or other legal authority to be void or unenforceable in any respect, then this Agreement shall thereby be amended (without the need for any action by the Parties) so as to bring it into conformity with applicable law. In other words, the matter which is adjudicated to be void or unenforceable shall be modified or severed out of this Agreement, and the other terms of this Agreement shall continue in full force and effect and govern the rights and obligations of the Parties hereto.
Governing Law, Venue and Attorneys’ Fees. In the event that any dispute arises hereunder, it is specifically stipulated that the rights and duties of the Parties hereto, and the validity, construction and enforcement of this Agreement shall be interpreted and construed according to the laws of the State of Florida and, when applicable, the United States of America. In the event of a dispute arising out of or in any way relating to this Agreement or any of the other documents executed in connection herewith, the Parties hereto irrevocably agree and consent in advance to any necessary transfers of venue and jurisdiction, so that the venue and jurisdiction for any such dispute shall lie exclusively in the applicable federal or state courts of Palm Beach County, Florida. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, but not limited to an action for injunctive relief and/or a suit for damages, the prevailing Party shall, in addition to any remedies available at law or in equity, be entitled to attorneys’ and paraprofessionals’ fees and expenses whether any suit is initiated and, if so initiated, through all trial and appellate proceedings.
Dispute Resolution. The parties agree to use the alternative dispute resolution procedure set forth herein as the sole means of resolving any disputes arising out of the Agreement and the rights and obligations of the parties there under, except where equitable remedies are the only means of effectively protecting the injured party. Consequently, the parties will attempt in good faith to resolve any dispute arising out of or relating to the Agreement promptly and initially by senior executives of the parties in the following manner: If a dispute should arise: (a) a senior officer for each of the parties shall meet within twenty one (21) days of written notification of the dispute at a location to be selected by the parties or via Skype/Web conference, to attempt to resolve the dispute; (b) if no resolution of the dispute occurs at this meeting, the two officers shall, within ten (10) days of said meeting, refer the matter to the next highest level of senior management for each party (the “Senior Executives”,) which Senior Executives shall have the authority to settle the dispute; (c) the referring officers shall promptly prepare and exchange memoranda stating the issues in dispute and each other’s position on the merits, summarizing the negotiations which have taken place and attaching relevant documents; (d) the Senior Executives shall meet as soon as practicable in person or via Skype/Web conference, but in no event not later than seven (7) days after the matter has been referred to them, the initial meeting occurring at a location to be selected by the parties; and (e) subsequent meetings, if required, shall be rotated between each Senior Executive’s place of business or at any other mutually agreeable location. If the Senior Executives are unable to resolve the dispute within ninety (90) days of their receipt of the written notice of the matter for resolution, and either or both are unwilling to continue negotiations, either party may request mediation provided such request is made in writing within ten (10) days of the close of this ninety (90) day period. In the event that either party requests mediation, both parties shall agree to participate in a mediation to be held within thirty (30) days of the written request for mediation, in Palm Beach County, Florida. Each party shall be responsible for one half (1/2) of the costs of the mediator, and the mediator shall be mutually selected by the parties. With the exception of the ninety (90) day limit for non-formal resolution and the ten (10) and thirty (30) day limits for mediation, the time limits described above are designed to be guides to which each party will use its commercial best efforts to adhere. Failure to meet each and every time limit described during the initial ninety (90) day period shall not constitute a breach of this Agreement. Subsequent to mediation or in the event of failed negotiations and no mutual agreement for mediation, each party shall be free to pursue any and all remedies available to it at law or in equity.
Term and Survival. The Parties acknowledge and agree that this Agreement shall have a term (the “Term”) of five (5) years from the Effective Date. In addition, the restrictions and obligations contained in this Agreement regarding Confidential Information, non-solicitation, and non-circumvention shall, as provided below, survive any expiration, termination or cancellation of this Agreement, with or without cause, or any other agreement by and among the Parties and thereafter shall continue to bind the Parties and their respective related and affiliated companies, officers, directors or managers, shareholders or members, employees and agents. The obligations and restrictions contained in Sections 9 and 10 of this Agreement relating to non-circumvention and non-solicitation shall bind the Parties during the Term of this Agreement and for a period of five (5) years thereafter. The obligations and restrictions contained in Sections 4,5,6,7, and 8 relating to the non-disclosure and use of Confidential Information shall bind the Parties during the Term of this Agreement and in perpetuity thereafter; provided, however, that, in the event of any court of competent jurisdiction as described in Section 22 determines that a perpetual obligation is inappropriate or should be modified, then the Parties agree that such provisions should be modified to survive for a period of ten (10) years thereafter. The Parties recognize and agree that the non-solicitation and non-circumvention provisions of this Agreement are predicated upon the protection of Confidential Information including, without limitation, each Party’s trade secrets that are of the essence of their contractual relationship.
Severability. Should any clause, sentence, paragraph, subsection or Section of this Agreement be judicially declared to be invalid, unenforceable or void, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the part or parts of this Agreement so held to be invalid, unenforceable or void will be deemed to have been stricken herefrom as if such stricken part or parts had never been included herein.
Statute of Limitations. The Parties agree that any action arising under this Agreement, except those arising from Publisher’s breach of Sections 4,5,6,7, 8, 9 and 10, shall be commenced within one (1) year of the date the alleged act, omission or breach was committed, without regard to the date of discovery of same. Any action not brought within the one (1) year time period shall be barred, without regard to any other limitations period set forth by governing law or statute.
Force Majeure. Neither Party shall be liable to the other Party for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control (a “Force Majeure Event”), including, without limitation, fire, flood, accident, earthquakes, telecommunications line failures, Internet or network failure or interruption, results of computer hacking, hostile network attacks, electrical outages, network failures, acts of God, acts of war, governmental actions, or labor disputes. If Publisher suffers such a delay or default, Publisher will make reasonable efforts within three (3) business days to recommend a substitute placement for the Ad acceptable to ASG. If no such substitute is acceptable to ASG, Publisher agrees, at no additional cost to ASG, to extend the duration of the campaign by the time lost due to delay or default.
Notices. Any and all notices, requests or other communications hereunder shall be given in writing and delivered by any one of the following methods: (a) email, (b) regular, overnight or registered or certified mail (return receipt requested), with first class postage prepaid, (c) hand delivery, (d) facsimile or electronic transmission or (e) overnight courier service, to the Parties at the addresses in the introductory paragraph above or at such other address or number as may be designated by either Party from time to time in accordance with this Section. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given, (i) in the case of email, upon transmission, (ii) in the case of a notice sent by regular mail, on the date actually received by the addressee, (iii) in the case of a notice sent by registered or certified mail, on the date receipted for (or refused) on the return receipt, (iv) in the case of a notice delivered by hand, when personally delivered, (v) in the case of a notice sent by facsimile or electronic transmission, upon transmission subject to telephone confirmation of receipt, and (vi) in the case of a notice sent by overnight mail or overnight courier service, the date delivered at the designated address, in each case given or addressed as aforesaid.
Interpretation. In this Agreement, unless a clear contrary intention appears: (a) the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not any particular provision of this Agreement; (b) the word “including” (and with correlative meaning “include”) means including, without limiting the generality of any description preceding such term; and (c) no provision of this Agreement shall be interpreted or construed against either Party solely because that Party or its legal counsel drafted such provision.
Marketing. ASG may disclose Publisher’s Website URLs and Publisher logos in any marketing materials and/or press releases created by ASG. However, Publisher shall not, and will cause its affiliates and any Sub-Publisher not to utilize ASG’s trade name, trademarks, logos and Ads in any advertising, publicity campaigns and public announcements, including, but not limited to, its press releases without the express written consent of ASG.
Independent Contractors. Nothing in this Agreement shall be construed or be deemed to create a relationship between either Party of employer and employee, principal and agent, or any relationship other than that of independent parties contracting with each other on a non-exclusive basis for the sole purpose of carrying out the provisions of this Agreement. In addition to the other covenants contained herein, each Party agrees that (a) the employees or agents of each Party shall not be deemed or treated to be employees of the other, (b) neither Party will withhold, on behalf of the other or its employees or agents, any sums for income tax, unemployment insurance, social security or any other withholding pursuant to any law, regulation or other requirement of a governmental body and will not make available to the employees or agents of a Party any of the benefits afforded to employees of the other, (c) any and all income tax, unemployment insurance, social security or any other withholding are the sole responsibility of the respective Parties, and (d) each Party will indemnify and hold harmless the from and against any and all loss or liability arising out of a determination of the Internal Revenue Service or any other governmental body (including any applicable court) that an employee or agent of one Party is or should be deemed to be an employee of the other.
Binding Authority. The Publisher represents and warrants to the other Party (i) that the individual signing this Agreement on such Party’s behalf has the power and authority to enter into this Agreement on behalf of such Party and bind such Party to perform its obligations hereunder, (ii) the execution and delivery of this Agreement and the consummation of the transaction contemplated hereby has been duly authorized by all necessary corporate or other organizational action on the part of such Party, and (iii) this Agreement constitutes the valid and binding obligation of such Party and is enforceable against such Party. The obligations of this Agreement in general and the confidentiality and non-solicitation and non-circumvention provisions in particular are intended to apply to and bind the Publisher and its respective parent, affiliate and subsidiary entities as well as their respective officers, Directors, Managers, principals, employees and agents.
Headings. The headings of the sections and paragraphs of this Agreement are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of this Agreement.
Counterparts. This Agreement may be executed by the Parties in more than one counterpart, each of which shall be deemed an original and all of which together shall constitute one and the same agreement. Any signature to this Agreement delivered by a Party by facsimile or electronic image (e.g., portable document format) transmission shall be binding upon that Party to the same extent as an original signature to this Agreement.
Entire Agreement. This agreement, inclusive of the Preambles and any and all exhibits and attachments are the complete and exclusive agreement between the Parties with the respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both Parties.
