Advertiser Terms & Conditions
Terms and Conditions To Publisher Insertion Orders These Terms and Conditions (“Ts & Cs”) are incorporated by reference into one or more Insertion Order(s) (“IO”)(the IO (s) which together with these Terms & Conditions comprise the “Agreement”) by and between Pushnami LLC. (“Pushnami”) and Publisher effective as of the date set forth on the first IO between the parties (the “Effective Date”).
If there is a conflict between these Ts & Cs and an IO, the IO shall prevail. Recitals WHEREAS, Pushnami wishes Publisher to provide certain Internet-based lead generation, customer acquisition and/or other related services for and on behalf of Pushnami for the Campaigns listed in the IO.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Pushnami and Publisher, intending to be legally bound hereby, agree as follows: I. DEFINITIONS: Capitalized terms used but not defined in these Ts & Cs shall have the meanings in the IO. In addition, the following terms will have the meanings set forth below:
1.1 “Applicable Laws, Rules and Regulations” shall mean all applicable federal, state and local laws, statutes, rules, regulations and policies relating to online and direct marketing and lead generation, including the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act (47 U.S.C. § 227 et. seq.), the Fair Credit Reporting Act (15 U.S.C. §§ 1681-1681), the Telemarketing Sales Rule (15 U.S.C. § 6101 et. seq.), Federal Trade Commission rules and regulations and applicable privacy and data protection laws, rules and regulations as such laws, rules, regulations and/or opinions may be amended, modified or supplemented from time to time. If Canadian traffic is permitted in an IO, then Applicable Laws, Rules and Regulations shall also include the Canadian Anti-Spam Legislation, S.C. 2010, c. 23 and the rules, regulations and Information Bulletins (“CASL”) promulgated thereunder and all Canadian laws, rules and regulation applicable to online advertising and lead generation.
1.2 “Qualified Lead” shall mean a consumer lead (“Lead”) acquired when a consumer provides complete registration data on a Site through a pre-approved opt-in method as specified in the applicable IO and who meets Pushnami’s screening criteria as described in the IO, who is acquired within the Permitted Parameters (defined below) and which is not an Invalid, Duplicate or Fraudulent Lead. For these purposes, (i) an Invalid Lead is a Lead which does not contain valid data inputs for all of the required fields, (ii) a Duplicate Lead is a lead which was sent to Pushnami by Publisher in the prior thirty (30) days and (iii) a Fraudulent Lead is a lead that is the product of incentivized marketing (unless otherwise permitted in an IO), fraud or manipulation of information on the part of Publisher or any of its affiliates. Pushnami may reject Invalid or Duplicate Leads in real time. Pushnami may reject Fraudulent Leads within 30 days after the end of the month in which the Lead was generated. In that event, Pushnami shall send Publisher notice identifying the Leads it believes are fraudulent together with the date/time stamp, referring URL and the reasons why Pushnami believes the Lead(s) is/are fraudulent. The parties agree to work in good faith to resolve any such dispute regarding Leads. Any Lead information deemed by Pushnami to not be a Qualified Lead or not paid for by Pushnami for any reason, shall be the Confidential Information of Publisher and may not be used in any manner whatsoever by Pushnami.
1.2.1 Unless otherwise provided for in an IO, Pushnami does not accept leads from consumers who are not U.S. residents, which shall be deemed Invalid Leads. Publishers are required to filter out consumers who enter a foreign mailing address, have an obvious non U.S. email address (e.g., X@*.ca) or have a known non U.S. IP address or access Creative or are otherwise generated from a non U.S. ISP.
1.3 “Creative” shall mean the advertisement and any components or elements thereof provided by Pushnami to Publisher including banner ads, emails including the body, header and subject lines, ad copy, contextual ads and/or other content that comprises the Creative. Creative shall also include advertising content created by Publisher, provided such creative has been approved by Pushnami as provided for in Section 3 below.
2. SERVICES: Publisher will display the Creative and perform lead generation services solely in the marketing channels described in the attached IO. Except as otherwise provided in the IO, Publisher shall use the Creative provided by Pushnami. Pushnami hereby grants to Publisher during the term of an IO a non-exclusive, royalty-free, worldwide right and license by all means and in any media, whether now known or hereafter discovered, to use, reproduce, distribute, publicly perform, publicly display and digitally perform such Creative and all its constituent parts. The parties understand and agree that Pushnami is the sole owner of any and all intellectual property rights associated with the Creative. In connection with generating Leads hereunder, Publisher is authorized to market Pushnami’s products and/or services as provided for in the IO which may include: (i) via e-mail to those consumers in Publisher’s proprietary database(s) of e-mail addresses (collectively, “Publisher Databases”); and (ii) to consumers on websites owned and/or operated by Publisher (collectively, “Publisher Websites” and together with the Publisher Databases, “Publisher Media”).
3. CREATIVE CHANGES: Publisher may not edit or otherwise modify the Creative or any component thereof which has been supplied by Pushnami without Pushnami’s prior written consent or as otherwise provided for in the IO; all modifications to Pushnami supplied Creatives must be approved by Pushnami prior to use. If permitted in the IO, Publisher may use its own Creatives. Such Creatives must comply with the marketing restrictions and creative guidelines set forth in Section 4; Pushnami may modify the marketing restrictions and creative guidelines from time to time which will take effect when provided in writing to Publisher. If Publisher uses any unapproved Creative, (i) Pushnami may immediately terminate this Agreement upon two (2) business days prior written notice, (ii) such use may also result in the forfeiture of all payments due Publisher hereunder; and (iii) Publisher shall be liable for any and all damages and/or claims attributable thereto without regard to any of the damage limitations set forth herein.
4. MARKETING RESTRICTIONS AND CREATIVE GUIDELINES: Except as otherwise provided for in an IO or with Pushnami’s prior written approval:
4.1 Publisher shall not use any “incentivized marketing” or establish, or cause to be established, any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Leads, nor create the appearance of incentivized marketing or otherwise attempt to induce consumers to provide Lead-related information through use of any other incentives.
4.2 Publisher may not: (i) include or promote any Creative or Leads by and through any blogs, news articles or other social media outlets; or (ii) use any endorsements or testimonials in connection with marketing the Creative or Leads.
4.3 Publisher shall not display Creative before the Start Date and after the End Date specified in the IO or as otherwise specified in a written notice from Pushnami, or after any cap limitation set forth in the IO has been met (collectively, “Permitted Parameters”). Pushnami reserves the right to pay Publisher only for Leads delivered using the Creative within the Permitted Parameters.
4.4 Pushnami does not accept Leads generated in connection with Publisher Websites that produce, promote, relate to or have characteristics of Prohibited Conduct. For purposes of the Agreement, “Prohibited Conduct” is where Publisher engages in any of the following: (i) modifying Creative in any way, or utilizing any Creative, that was not provided by Pushnami or pre-approved by Pushnami; (ii) placing Creative on specifically non-approved Publisher Media, or in such a fashion that may be misleading or deceptive to the Consumer; (iii) serving Creative, or driving traffic to Creative, using any downloadable software or applications without Pushnami’s prior written approval; (iv) using invisible methods or auto-spawning browsers to generate Leads that are fraudulent or that are not the affirmative act of the Consumer; (v) engaging in any advertising via facsimile or telemarketing; (vi) engaging in any advertising to telephones, mobile phones or other portable electronic devices via SMS, Smart Messaging, EMS, MMS or any other type of text messaging service or protocol unless pre-approved by Pushnami in writing; (vii) violating the terms of service of, or Abusing, social media websites such as MySpace, Craigslist, Facebook or Twitter to drive traffic to the Creative or Publisher Media (for purposes hereof, “Abusing” shall mean spamming, sending any unsolicited mass mailing or instant messaging, using social media websites for commercial purposes (without Pushnami’s prior written consent), making any automated use of the systems, such as using scripts to send bulletins or other communications, or any other activity that violates the applicable terms of service); (viii) attempting in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective the tags, source code, links, pixels, modules or other data provided by or obtained from Pushnami that allow Pushnami to measure Creative performance and/or assure Publisher Media transparency; (ix) intentionally soliciting personal information from any Consumer under eighteen (18) years of age or from any Consumer who is not a U.S. resident; (x) engaging in any unlawful commercial activities; and/or (xi) engaging in any conduct that Pushnami objects to, in writing, at least two (2) business days in advance.
4.5 Publisher shall not place any Creative or other intellectual property made available to Publisher in connection with its performance under the Agreement on Publisher Websites that contain, promote, reference or have links to: (i) web pages with no content; (ii) profanity, sexually explicit material, hate material, material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or family status, or any other material , upon two (2) business days prior written notice, deemed by Pushnami to be unsuitable or harmful to the reputation of Pushnami; (iii) piracy (of software, videos, audio/music, books, video games, etc.) hacking/cracking/phreaking, emulators/ROMs, or distribution of copyrighted materials; (iv) illegal activities or advice; (v) intentionally deceptive acts or practices; (vi) violations of the rights of others, such as intellectual property or privacy rights; (vii) personal web pages, non-English language pages, free hosted pages or Publisher Websites under construction; (viii) charity clicks/donations, paid to surf, Active X downloads, all affiliate links or incentivized traffic where consumers have some sort of incentive to click on Creative; or (ix) activities generally understood as Internet abuse including the sending of unsolicited bulk electronic mail or the use of spyware.
4.6 Publisher may not use third-party trademarks or any other term excluded from the applicable “Search Terms for Use” provided in the IO (if provided), in any manner to direct traffic to Publisher Media. This prohibition includes purchasing keywords from search engine service providers (“Paid Search Networks”), or purchasing inclusion in search engine networks (“Paid Inclusion Networks”), where the associated keywords include the trademark, service mark and/or brand name of any third-party including, without limitation, Pushnami, or any derivative or misspelling of any such trademark, service mark or brand name. Publisher must provide all text and proposed keywords/phrases that it would like to bid on (“Keyword Text”) to Pushnami for approval or editing, prior to submitting same to any Paid Search Network or Paid Inclusion Network. Without limiting the foregoing, Publisher must not violate the rules, requirements and regulations of any Paid Search Network or Paid Inclusion Network, and Publisher shall fully indemnify and hold harmless Pushnami from and against any and all liability arising from or in connection with any such violation. Unless otherwise authorized in the IO or by Pushnami in writing, in advance, Publisher may not link directly to the Website, directly from the sponsored links and/or search results generated in connection with Paid Search Network or Paid Inclusion Network marketing.
5. COMPLIANCE: Pushnami will actively monitor Publisher activity using a combination of its own proprietary software and third party monitoring services to detect Invalid, Duplicate and Fraudulent Leads. The following are indicia of accounts containing Fraudulent Leads: Have click-through rates that are much higher than industry averages and where solid justification is not evident; Have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; Have shown fraudulent leads as determined by Pushnami’s clients; or Use fake redirects, automated software, and/or fraud to generate clicks or leads. Pushnami may develop other factors that indicate Fraudulent Leads. If Pushnami reasonably believes that Publisher is submitting Fraudulent Leads, Pushnami will hold Publisher payment in ‘Pending Status’ until Publisher has satisfactorily provided evidence that Publisher is not submitting Fraudulent Leads. Pushnami shall not be obligated to pay for Invalid or Duplicate Leads or Fraudulent Leads which have been timely disputed as provided for in this Section 5. Pushnami shall send Publisher notice no more than 30 days after the end of the month in which the Lead was delivered of any Leads that it is disputing. The dispute notice shall identify the Leads disputed including date and time stamp, subID, IP address and the grounds that such Lead(s) is (are) being disputed. The parties shall use commercially reasonable efforts to resolve disputed Leads; disputed Leads which are determined to be Invalid, Duplicate or Fraudulent Leads and for which Publisher is not paid are referred to as “Scrubbed.” If Publisher is unable to reasonably prove that Publisher is not committing fraud and/or attempting to supply Fraudulent Leads, Publisher will forfeit the specific commission for such allegedly fraudulent leads and Publisher’s account will be terminated.
6. REMOVAL OF CREATIVES: Publisher may, in its complete discretion, reject, cancel or remove at any time any Creative for any reason without prior notice to Pushnami. Publisher must notify Pushnami following the rejection, cancellation or removal of any Creative from the service within one (1) business day.
7. TERM: The term for any campaign will be indicated in the IO. If no term is indicated, the term for a Campaign will continue for one (1) month from the target launch of the initial campaign as noted in the IO. These Ts & Cs shall continue until expiration of the last IO to expire. The Agreement, including any outstanding IOs, may be terminated by mutual consent of the parties but may be terminated by either party for any reason whatsoever upon two business days prior written notice. All non-disputed moneys due to Publisher will be paid during the next billing cycle. If Publisher defrauds the system, then Pushnami may revoke payment specifically related to such violation.
8. PAYMENT: Pushnami will pay for Qualified Leads on the basis – cost per acquisition, cost per lead, cost per install, cost per click , etc. – specified in the IO. Publisher will invoice Pushnami on a monthly basis at the payout rates reflected in the IO. The invoice will reflect delivery of final Qualified Lead numbers that are based upon numbers reported by Pushnami to Publisher pursuant to the terms of this Agreement. In the case of any dispute between the parties as to the number of Qualified Leads, Pushnami’s numbers will control.
9. PAYMENT TERM: Pushnami shall make all payments to Publisher within 30 days of the Invoice Date or on such terms specified in an IO. All payments made to Publisher do not include, and Publisher shall pay, any sales, use or similar tax associated with such payment. All past due amounts shall accrue interest at the rate of one percent (1.0%) per month or the maximum rate allowed by law, whichever is lower. The parties shall keep, maintain and preserve, for the term of this Agreement and for one (1) year thereafter, accurate records relating to amounts due hereunder (the “Relevant Records”). Publisher shall have a right at least once per calendar year to audit the Relevant Records of Pushnami to verify fulfillment of the other party’s payment obligations pursuant to this Agreement. Each audit will be conducted at a place agreed to by the parties, during the normal business hours, with at least ten (10) business days’ prior written notice to Pushnami. Publisher shall pay the fees and expenses of the audit, unless the audit reveals a payment discrepancy of more than ten percent (10%) of all payments due in any consecutive six (6) month period, in which case Pushnami shall pay the reasonable out-of-pocket fees and expenses of the audit, and shall immediately pay to Publisher all amounts found to be due together with interest thereon at the rate specified above.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS:
10.1 Pushnami and Publisher each represent and warrant to the other party that (i) such party has the full corporate power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder, and (ii) this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms, except as such may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar law affecting the enforcement of creditors’ rights generally and except as may be limited by federal principles of equity.
10.2 Publisher represents, warrants and covenants to Pushnami: (i) the Publisher Database contains email addresses from U.S. residents where the users have manifested affirmative consent to receive commercial emails from Publisher and none of the email addresses were obtained through email harvesting or dictionary attacks; (ii) Publisher will not fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation; (iii) Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the site tags, source codes, links, pixels, modules or other data provided by or obtained from Pushnami that allows Pushnami to measure ad performance and provide its services; (iv) all of Publisher’s services associated with this Agreement comply with Applicable Laws, Rules and regulations; (v) any Creatives created or developed by Publisher other than Creatives supplied by Pushnami will not infringe or otherwise violate the intellectual property right of any third party.
10.3 Pushnami represents, warrants and covenants to Publisher: (i) that it holds the required intellectual property rights and/or licenses necessary to license the Creatives it supplies to Publisher and (ii) the Creatives provided to Publisher (and their posting, display, use, reproduction, distribution, and transmission by Publisher) do not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights and do not violate Applicable Laws, Rules and regulations and do not contain any Prohibited Materials; (iii) the operation of Pushnami’s business and any business advertised using the Qualified Leads complies with Applicable Laws, Rules and Regulations and will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights; and (iv) Pushnami will maintain appropriate physical, technical and organizational measures to protect all non-public personal information, sales, registration, or data provided by or about a user (“Lead Data”) against accidental loss or unauthorized access, use, disclosure, alteration, or destruction.
11. EMAIL CAMPAIGNS: 11.1 Publisher further represents and warrants that with respect to email campaigns transmitted by Publisher for Pushnami, Publisher shall at all times only use the Pushnami provided Creative, maintain compliance with CAN-SPAM and any amendments and modifications thereto and all Applicable Laws, Rules and Regulations and at a minimum meet the marketing requirements set forth in this Section 11. If any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the Effective Date of the Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such subsequently enacted or amended law, rule or regulation shall apply to Publisher.
11.2 Publisher shall bear any costs and/or fees charged by Publisher’s Internet Service Provider related to responding to and/or managing allegations of “spam” or any other unauthorized usage complaints received from consumers, regulatory agencies or otherwise. Publisher shall: (a) make adequate disclosures as required by Applicable Laws, Rules and Regulations to those in the Publisher Database regarding its e-mail and privacy and security policies; (b) respond to all complaints within such time as required by applicable law after Publisher becomes aware of the complaint; and (c) provide Pushnami with a copy of every complaint related to Pushnami, promptly, upon Publisher’s receipt thereof. Publisher is solely responsible for all Consumer complaints in connection with e-mail campaigns that it conducts. Publisher further represents and warrants that the e-mail addresses in the Publisher Database were originally compiled with the consumer’s “Affirmative Consent,” as defined in CAN-SPAM, and that all recipients have in fact opted-in to the applicable Publisher Database.
11.3 Publisher must, upon Pushnami’s request, supply the name, date, time and IP address where the consumer signed-up and/or gave Affirmative Consent to Publisher to be contacted with such e-mail messages. Publisher represents and warrants that it shall: (i) not falsify e-mail header and transmission information (including, without limitation, source, destination and routing information); (ii) not use brand names and/or trademarks of another party in the subject or from lines or body of any commercial e-mail transmission; (iii) not seek or obtain unauthorized access to computers for the purpose of sending any commercial e-mail; (iv) include within all commercial e-mail sent, Publisher’s correct point-of-origin e-mail address, transmission information and routing information; (v) include within all commercial e-mail sent, clear, prominent opt-out instructions in the e-mail and in the first line of the text, if required by applicable law; (vi) include within all commercial e-mail sent, a toll-free telephone number or valid e-mail address at which recipient may contact Publisher to file complaints and/or opt-out; (vii) include within all commercial e-mail sent, a functioning unsubscribe link which, when activated by user, actually and permanently removes the user’s e-mail address from the applicable Publisher Database; and (viii) the identifier and any disclaimers that Pushnami assigned to the e-mail.
12. SUPPRESSION LISTS:
12.1 With respect to any suppression list generated by Publisher hereunder, or provided to Publisher by Pushnami (collectively, the “Suppression List”), Publisher shall: (a) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of the Agreement; (b) regularly use such Suppression List to remove any and all e-mail addresses contained therein from the receipt of future commercial e-mail messages; (c) not use any Suppression List other than as required; (d) not use any Suppression List for purposes of e-mail appending in any manner whatsoever; (e) hold any Suppression List made available by Pushnami in trust and confidence; and (f) not disclose any Suppression List made available by Pushnami to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms of the Agreement. Publisher further agrees and acknowledges that: (i) it has downloaded and removed the domains located on the Federal Communications Commissions (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in mailings hereunder; and (ii) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained therein will be removed before sending any mailings hereunder.
12.2 Pushnami shall provide Publisher with a copy of the Pushnami-generated Suppression List at least once per week. If no such e-mail addresses are supplied by Pushnami, Publisher may conclude that no such addresses exist. Without limiting the generality of the foregoing, Publisher shall ensure that: (A) the Publisher Database is scrubbed against any “do not e-mail” or suppression lists provided by Pushnami prior to the respective mailing, or compiled by Publisher, prior to any mailing campaign; and (B) each commercial e-mail includes the following: a valid unsubscribe link and postal address for Pushnami, and identification of the e-mail as a commercial e-mail. Pushnami’s unsubscribe link shall link to a web page (the “Unsubscribe Page”) which will enable the applicable user to unsubscribe from receiving future commercial e-mail from Publisher and/or Pushnami in a commercially reasonable manner. Each unsubscribe request shall be given effect within such time as required by applicable law.
13.1 During the term of this Agreement, each party may disclose to the other party certain information (either oral, written or digital) including, but not limited to, data, research, product plans, products, services, pricing, customer lists, mailing lists, marketing plans, opportunities, trade secrets, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, marketing or financial data (collectively, “Confidential Information”). Confidential Information shall also include the terms of this Agreement. Recipient agrees to use at least the same degree of care, but not less than reasonable care, to prevent disclosure of Confidential Information to third parties as Recipient would use to protect its own Confidential Information. The term “Confidential Information” shall not include any information which: (a) at the time of the disclosure or thereafter is or becomes generally available to the public other than as a result of its disclosure by the Recipient in violation of this Agreement, (b) was or becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party, (c) is independently developed by the Recipient without the use of any Confidential Information, or (d) was in the possession of the Recipient prior to being disclosed to the Recipient by the Disclosing Party.
13.2 Recipient shall not disclose to any third party, nor permit any other person or entity access to the Disclosing Party’s Confidential Information, except as required by an employee, agent, officer, director, partner, or representative of such party in order to perform the obligations or exercise rights under this Agreement. Each party shall ensure that its employees, agents, officers, directors, partners, or representatives are advised of the confidential nature of the Confidential Information and are precluded by contract or other legal obligation from taking any action prohibited under this Section. A party shall immediately notify the other party in writing of all circumstances surrounding any possession, use, or knowledge of Confidential Information by any person or entity other than those authorized by this Agreement. Notwithstanding the foregoing, Pushnami shall have the right to disclose the existence of this Agreement and refer to its relationship with Publisher for marketing and promotional purposes.
13.3 The term “Confidential Information” shall not include any information which: (a) at the time of the disclosure or thereafter is or becomes generally available to the public other than as a result of its disclosure by the Recipient in violation of this Agreement, (b) was or becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party, (c) is independently developed by the Recipient without the use of any Confidential Information, or (d) was in the possession of the Recipient prior to being disclosed to the Recipient by the Disclosing Party. Recipient may disclose the Disclosing Party’s Confidential Information upon the order of any competent court or government agency. Prior to any such disclosure the Recipient shall, to the extent that doing so would not prejudice the Recipient or subject the Recipient to a fine or penalty, inform the Disclosing Party of such order and afford the Disclosing Party the opportunity to contest such disclosure.
13.4 Upon termination of this Agreement, Recipient shall, upon the request of the Disclosing Party, return or destroy all Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Recipient may retain one (1) copy of all Confidential Information for legal and compliance purposes provided it maintains such copy in accordance with this Agreement and ceases using such data for business purposes. In the case of destruction, the Recipient shall certify in writing such destruction to the Disclosing Party within ten (10) days following written request for such certification. 13.5 Each party agrees that, in addition to any other remedies that may be available, the Disclosing Party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Recipient, without limiting any other rights and remedies to which the Disclosing Party may be entitled to at law, in equity or under this Agreement.
14. DISCLAIMER OF WARRANTIES: EXCEPT AS OTHERWISE PROVIDED HEREIN, EACH OF THE PARTIES PROVIDES THE CREATIVES, SITES AND THE SITES OF ITS AFFILIATES AND PARTNERS, AND SERVICES AND THE SERVICES OF ITS AFFILIATES AND PARTNERS, AS PERFORMED HEREUNDER, ON AN “AS IS,” “WHERE IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE PROVIDED HEREIN, EACH OF THE PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. 15. LIMITATIONS OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR AN AMOUNT GREATER THAN THE AMOUNTS PAID BY Pushnami TO PUBLISHER DURING THE SIX MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM.
16. INDEMNIFICATION: Each party agrees to indemnify, defend and hold harmless the other party and its employees, agents, officers and directors, against any and all claims, causes of action, judgments, demands, damages, losses or liabilities, including costs and expenses (including reasonable attorney’s fees and costs of suit), arising out of or relating to (a) any claim based upon infringement of copyright, trademark, patent, or trade secret or other intellectual property right of any third party; (b) any claim, representation, or statement made in the Creative; (c) any breach of any representation or warranty contained in this Agreement.
17. DISPUTE RESOLUTION: If any dispute arises under this Agreement, if applicable, the Parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the following location: State of Texas, Travis County. Any costs and fees other than attorneys’ fees associated with the mediation shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties agree to submit the dispute to binding arbitration in the following location: State of Texas, Travis County. The Parties agree that the binding arbitration will be conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. If any litigation or arbitration is absolutely necessary to enforce this Agreement or the terms thereof, the prevailing Party shall be entitled to reimbursement by the other Party for reasonable attorneys’ fees, costs and expenses. This Agreement will be governed by the laws of the State of Texas.
18. NO ASSIGNMENT: Neither Party shall have the right to assign or otherwise transfer its rights nor obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.
19. INDEPENDENT CONTRACTOR: Each party is an independent contractor. Except as set forth in this Agreement, neither party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the party’s prior written consent.
20. SEVERABILITY: If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
21. ENTIRE AGREEMENT; MODIFICATION: These Ts & Cs together with any IO and Exhibit A attached hereto constitutes the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral, regarding the subject matter. No modification, course of conduct, amendment, supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the parties unless made in writing and duly signed by both parties.
22. AGREEMENT IN COUNTERPARTS: These Ts & Cs are deemed incorporated into an IO and will be effective when the IO is signed by Pushnami and Publisher. An IO may be signed in counterparts, and facsimile signatures shall have the same force and effect as an original signature.
23. NOTICES. Any notice, approval or consent required or permitted hereunder shall be in writing and sent to the addresses set forth on the applicable Insertion Order and will be deemed to have been duly given upon (i) delivery if delivered personally, (ii) within three (3) days if mailed by first-class, registered or certified U.S. mail, postage prepaid, return receipt requested, (iii) upon the date of delivery if sent via overnight delivery service, or (iv) upon the date of confirmed receipt, as confirmed or acknowledged by recipient, of the email or facsimile if sent via email or facsimile.
24. COMPLETE AGREEMENT. This Agreement, including any and all applicable Insertion Orders and the documents referred to herein and therein, supersedes all proposals, oral or written, negotiations, or discussions by the parties relating to the subject matter of this Agreement and all past dealing or industry custom. Any handwritten edits to this Agreement are ineffective unless both parties’ signatories place their initials adjacent to such handwritten edits.