Advertisers Terms


This Internet Advertising Agreement (this “Agreement”), dated as of the date if the IO (defined below) (the “Effective Date”), is made by and between AdMeridian Inc, Incorporated, a Delaware corporation with offices at 99 Hudson Street 5th Floor New York, NY 10013. (“AdMeridian”) and the Advertiser. The term “Advertiser” means collectively the entity that signs an IO and, if applicable, the entity for which the advertising is placed. Therefore, the term “Advertiser,” as the context requires, shall mean the Agency, if an Agency is involved, and the Advertiser (the entity for which the Ads are placed), collectivity and individually.


BACKGROUND

Under this Agreement it is the intention of the Advertiser to place advertisements with AdMeridian for display on websites pursuant to an internet advertising campaign developed by AdMeridian.

AGREEMENT

The parties agree as follows:

I. INSERTION ORDERS AND INVENTORY AVAILABILITY
a. From time to time, parties may negotiate insertion orders (“IO”s) under which AdMeridian will deliver advertisements provided by Advertiser (“Ad(s)”) to website(s) with advertising space contracted for by AdMeridian (the “Network”) for the benefit of the Advertiser. Unless the parties otherwise agree, all IOs shall be in substantially the same format as the insertion order attached hereto. An IO will be binding only if accepted by both parties as provided in Section I b) below.

b. AdMeridian will notify Advertiser within three (3) business days of the receipt of a signed IO if the specified inventory is not available. Acceptance of the IO will be made upon earlier of: (i) written approval (which, unless otherwise specified, for purposes of these Terms and Conditions shall include paper, fax, or e-mail communication) of the IO by AdMeridian and Advertiser; or (ii) the display of the first Ad impression associated to the applicable IO by AdMeridian.

c. IOs are governed by the terms of this Agreement. Revisions to accepted IOs must be made in writing and acknowledged by both parties in writing.

II. AD PLACEMENT AND POSITIONING
a. AdMeridian must comply with the IO, including all Ad placement restrictions and requirements to create a reasonably balanced delivery schedule, and provide within the scope of the IO, an Ad to the appropriate websites in the Network as specified on the IO when such website is called up by an Internet user. Any exceptions must be approved by Advertiser in writing.

b. AdMeridian will submit or otherwise make electronically accessible to Advertiser any technical specifications. Changes to the specifications of the already purchased Ads will allow Advertiser to suspend (without impacting the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either (i) send revised artwork, copy, or active URLs (“Advertising Materials”); (ii) request that AdMeridian resize the Ad at Advertiser’s cost within a reasonable time period; or (iii) accept a comparable replacement.

c. Ad delivery shall comply with editorial adjacencies guidelines stated on the IO. As Advertiser’s sole remedy for a violation of the foregoing sentence, after Advertiser notifies AdMeridian that specific Ads are in violation of such editorial adjacencies guidelines, AdMeridian will make commercially reasonable efforts to correct within 24 hours such violation. In the event that such correction materially and adversely impacts such IO, the parties will negotiate in good faith mutually agreed changes to such IO to address such impacts. In the event that the parties cannot reach agreement on such changes within five business days from the implementation of such correction, Advertiser or AdMeridian may, upon the conclusion of such 5 business day period, immediately cancel such IO. Advertiser shall pay for any affected Ads delivered prior to cancellation of such IO.

III. PAYMENT AND PAYMENT LIABILITY
a. Invoices
Unless otherwise specified in the IO, the initial invoice will be sent upon completion of the first month’s delivery or within 30 days of completion of the IO, whichever is earlier. Invoices are to be sent to: Advertiser’s billing address as set forth in the IO. The impression count used for invoicing purposes shall be based on Ads delivered as reported by the DoubleClick ad serving infrastructure or any other ad serving system utilized by AdMeridian.

b. Payment Date
Advertiser will make payment 30 days from receipt of invoice, or as otherwise stated in a payment schedule set forth in the IO.

c. Payment Liability
Advertiser is liable to AdMeridian for all payments for Ads placed in accordance with the IO. If Advertiser’s credit is or becomes impaired, AdMeridian may require payment in advance.

IV. REPORTING
a. AdMeridian must, within 2 business days of the start date on the IO, provide confirmation to Advertiser, either electronically or in writing, stating whether the components of the IO have begun delivery.

b. AdMeridian shall make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified in the IO. Reports must be broken out by day and summarized by creative execution, content area (Ad placement), and other variables defined in the IO, for example, impressions and/or clicks. Once AdMeridian has provided the online or electronic report, it agrees that Advertiser is entitled to reasonably rely on it, subject to receipt of AdMeridian’s invoice for such period. The impression count shall be based on Ads delivered as reported by the DoubleClick ad serving infrastructure or any other ad serving system utilized by AdMeridian.

V. CANCELLATION AND TERMINATION
a. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder that is not cured within 10 days after written notice thereof from the nonbreaching party, except as otherwise stated in this Agreement with regard to specific breaches.

b. Short rates will apply to cancelled buys to the degree stated on the IO.

VI. MAKEGOODS
a. AdMeridian shall monitor delivery of the Ads, and shall notify Advertiser either electronically or in writing as soon as possible (and no later than two weeks before IO end date unless the length of the campaign is less than two weeks) if AdMeridian believes that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for makegood consistent with this Agreement.

b. In the event that actual impressions for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any Ad (placement or creative unit), Advertiser and AdMeridian will make an effort to agree upon the conditions of a makegood flight either in the IO or at the time of the shortfall. If no makegood can be agreed upon, the parties may agree to execute a credit equal to the value of the under-delivered portion of the contract IO for which Advertiser was charged. In the event that Advertiser has made a cash prepayment to AdMeridian, specifically for the campaign IO for which under-delivery applies, then if Advertiser is current on all amounts owed to AdMeridian under any other agreement for such Advertiser, Advertiser may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event shall AdMeridian provide a makegood or extend any Ad beyond the period set forth in the IO without prior written consent of Advertiser.

VII. BONUS IMPRESSIONS
a. Where Advertiser utilizes a third party ad server (“3rd Party Ad Server”), AdMeridian will not bonus more than 10% above the impressions specified in the IO without prior written consent from Advertiser. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad served activity. Advertiser will not be charged by AdMeridian for any additional Ads above any level guaranteed or capped in the IO. If a 3rd Party Ad Server is being used and Advertiser notifies AdMeridian that the guaranteed or capped levels stated in the IO have been reached, AdMeridian will use commercially reasonable efforts to suspend delivery and, within 48 hours, may either 1) serve any additional Ads itself or 2) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser 48 hours after such notice has been provided to AdMeridian and associated with overdelivery by more than 10% above such guaranteed or capped levels.

b. Where Advertiser does not utilize a 3rd Party Ad Server, AdMeridian may bonus as many ad units as AdMeridian chooses unless otherwise indicated on the IO. Advertiser will not be charged by AdMeridian for any additional advertising units above any level guaranteed in the IO.

VIII. FORCE MAJEURE
a. Excluding payment obligations, neither party will be liable 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, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. In the event that AdMeridian suffers such a delay or default, AdMeridian shall make reasonable efforts within ten business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is available, AdMeridian shall allow Advertiser a pro rata reduction in the space, time and/or program charges hereunder in the amount of money assigned to the space, time and/or program charges at time of purchase.

b. To the extent that a force majeure has continued for 30 days, AdMeridian or Advertiser has the right to cancel the remainder of the IO without penalty. Notwithstanding the foregoing, Advertiser is liable for all Ads delivered prior to the force majeure event.

IX. AD MATERIALS
a. It is Advertiser’s obligation to submit Advertising Materials in accordance with AdMeridian’s advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the website on which the Ads are to appear), other editorial or advertising policies, and material due dates) (collectively “Policies”) in accordance with Section II(b). If Advertising Materials are late, Advertiser is still responsible for the media purchased pursuant to IO.

b. AdMeridian reserves the right within its discretion to reject or remove from its Network any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in AdMeridian’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, AdMeridian reserves the right within its discretion to reject or remove from its Network any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon AdMeridian or any of its Affiliates (as defined below).

c. If AdMeridian becomes aware that the Advertising Materials provided by Advertiser are damaged, not to AdMeridian’s specifications, or otherwise unacceptable, AdMeridian will notify the Advertiser. AdMeridian may, in its sole discretion, suspend any affected portion of the campaign until the Advertiser provides corrected Advertising Materials.

d. AdMeridian will not edit or modify the submitted Ads in any way, including, but without limitation, resizing the Ad, without Advertiser approval.

e. When applicable, Third Party Ad Server tags shall be implemented so that they are functional in all aspects.

f. AdMeridian may use the name and logo of the Advertiser in presentations, marketing materials, customer lists, financial reports and website listings of AdMeridian customers. Subject to the foregoing, AdMeridian, on one hand, and Advertiser, on the other, will not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of this Agreement or an IO without the other’s prior written approval.

X. INDEMNIFICATION
a. Advertiser agrees to defend, indemnify and hold harmless AdMeridian, its Affiliates and its respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Advertiser’s breach of Section XII, violation of Policies, or the content or subject matter of any Ad or Advertising Materials to the extent used by AdMeridian in accordance with these Terms and Conditions or an IO, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action. An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A “Third Party” means an entity other than the parties to this Agreement, their respective Affiliates, and each of their respective directors, officers, employees and agents.

b. Advertiser represents and warrants that it has the authority as agent to Advertiser to bind Advertiser to these Terms and Conditions and each IO. Advertiser agrees to defend, indemnify and hold harmless AdMeridian its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of Advertiser’s alleged breach of the foregoing sentence.

c. If any action will be brought against an indemnified party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from Advertiser, the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Advertiser in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Advertiser will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.

XI. LIMITATION OF LIABILITY
Excluding Advertiser’s obligations under Section X or damages that result from a breach of Section XII or intentional misconduct by the parties, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages. Except for Advertiser’s obligations under Section X or damages that result from breach of Section XII, the aggregate liability of either party under this Agreement for any claim is limited to the amount paid by Advertiser to AdMeridian during the three month period immediately preceding the date the claim arose.

XII. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS
a. Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the IO, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.

b. For purposes of this Section, Advertiser shall be considered one party. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a party; (ii) was or becomes generally available to the public through no fault of the receiving party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.

c. All personally identifiable information provided by individual web users who are informed that such information is being gathered solely on behalf of Advertiser pursuant to the Advertiser’s posted privacy policy is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information. Any other use of such information must be set forth in the IO signed by both parties.

d. AdMeridian and Advertiser shall post on their respective Web sites their privacy policies and adhere to their privacy policies, which abide by the applicable laws. Failure by AdMeridian, on one hand, or Advertiser, on the other, to continue to post a privacy policy or nonadherence to its own privacy policy is grounds for immediate cancellation of the IO by the other parties.

e. Advertiser and AdMeridian will comply with at all times, all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.

XIII. THIRD PARTY AD SERVERS
a. AdMeridian will track delivery through its ad server and Advertiser will also track delivery through its proprietary or subcontracted 3rd Party Ad Server whose identity is set forth in the IO. Advertiser may not substitute the 3rd Party Ad Server specified in the IO without AdMeridian’s consent. Advertiser and AdMeridian agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide weekly placement-level activity reports to each other. In the event that AdMeridian’s ad server measurements are higher than those produced by the Advertiser’s 3rd Party Ad Server by more than 10% over the invoice period, Advertiser will facilitate a reconciliation effort between AdMeridian and 3rd Party Ad Server. If the discrepancy cannot be resolved, the Advertiser shall pay AdMeridian based on Advertiser 3rd party Ad Server reported data, plus a 10% upward adjustment to delivery.

b. AdMeridian will make reasonable efforts to publish, and Advertiser shall make reasonable efforts to cause the 3rd Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regards to compliance with the IAB/AAAA Ad Measurement Guidelines.

c. Section XIII(a) shall be terminated upon the establishment of an IAB/AAAA certification process for compliance with the IAB/AAAA Ad Measurement Guidelines. Upon such termination the parties shall negotiate in good faith a replacement or successor language for that Section.

d. Where an Advertiser is utilizing a 3rd Party Ad Server and that 3rd Party Ad Server cannot serve the Ad, Advertiser shall have a one-time right to temporarily suspend delivery under the IO for a period of up to 72-hours. Upon written notification by Advertiser of a non-functioning 3rd Party Ad Server, AdMeridian has 48 hours to suspend delivery. Following that period, Advertiser will not be held liable for payment for any Ad that runs within the immediate 72-hour period thereafter until AdMeridian is notified that the 3rd Party Ad Server is able to serve Ads. After the 72-hour period passes and Advertiser has not provided written notification that AdMeridian can resume delivery under the IO, Advertiser will pay for the Ads that would have run or are run after the 72 hour period but for the suspension and can elect AdMeridian to serve Ads until 3rd Party Ad Server is able to serve Ads. If Advertiser does not so elect for AdMeridian to serve the Ads until 3rd Party Ad Server is able to serve Ads, AdMeridian may utilize the inventory that would have been otherwise used for AdMeridian’s own advertisements or advertisements provided by a third party. Notwithstanding the foregoing, Advertiser will pay for the Ads that would have run after the 72 hour period but for the suspension.

e. Upon notification that the 3rd Party Ad Server is functioning, AdMeridian will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in AdMeridian owing a makegood to Advertiser.

XIV. DISCLAIMER OF WARRANTIES
AdMeridian DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE IO, THE SITES, THE ADVERTISING MATERIALS AND THE ADS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

XV. MISCELLANEOUS
a. Advertiser represents and warrants that it has all necessary licenses and clearances to use the content contained in their Ads and Advertising Materials.

b. Advertiser shall not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without AdMeridian’s prior written approval will be null and void. All terms and provisions of these Terms and Conditions and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.

c. These Terms and Conditions and the related IO constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.

d. In the event of any inconsistency between the terms of an IO and these Terms and Conditions, the terms of the IO shall prevail. All IOs shall be governed by the laws of the Commonwealth of Virginia. AdMeridian and Advertiser agree that any claims, legal proceeding or litigation arising in connection with the IO (including these Terms and Conditions) will be brought solely in Alexandria, Virginia and the parties consent to the jurisdiction of such courts. No modification of these Terms and Conditions or any IO shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.

e. Any notice required to be delivered hereunder shall be delivered three days after deposit in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to AdMeridian and Advertiser shall be sent to the contact as noted in the IO with a copy to the Legal Department. All notices to Advertiser shall be sent to the address specified on the IO.

f. Sections III, VI, X, XI, XII, XIV, and XV shall survive termination or expiration of this Agreement and Section IV shall survive for 30 days after the termination or expiration of this Agreement. In addition, each party shall return or destroy the other party’s Confidential Information and remove Advertising Materials and Ad tags.

g. It is the intention of the parties hereto to agree to the terms and conditions of this Agreement by execution of, or performance under, the IO. Accordingly, the parties have executed and delivered this Agreement by operation of the IO as of the Effective Date

Publishers Terms


AdMeridian PUBLISHER AGREEMENT
This AdMeridian Publisher Agreement (“Agreement”) includes any schedule and other attachment(s) hereto and all other agreements, policies, and documents incorporated by reference herein.

EFFECTIVE DATE The effective date of this agreement shall be the date and time when the Publisher has created an online account using the online form located at http://AdMeridian/publisher/signup and has agreed and accepted the terms and conditions of this Agreement by checking the “I agree” area of the form and clicking on “Sign Up!”

THE PARTIES AdMeridian, Inc. (“AdMeridian”) And the named applicant with Name, Title, Company Name and Address as submitted on the form located at http://AdMeridian.com/publisher/signup (“Publisher”). Each also referred to herein as a “Party” and collectively the “Parties.”

RECITALS 1. AdMeridian provides Internet-related advertising services.
2. Publisher wishes to use AdMeridian's services in association with the Web sites and/or applications under the ownership and/or control of Publisher.

TERMS AND CONDITIONS 1. DEFINITIONS
All capitalized terms herein shall take on the meaning attributed to them below:
1.1 “Additional Term” means the period commencing from the expiration of the Initial Term and ending at 12 a.m. Central Time of the 1-calendar-year anniversary date thereof.
1.2 “Advertisements” mean the advertisements that are provided by AdMeridian over an Approved Protocol for display on Publisher Media and may include advertisements from Direct Advertisers and/or advertisements sourced from Upstream Partners.
1.3 “Advertisement Format” means the format in which the Advertisement is displayed on Publisher Media, including text and graphic banners. Advertisement Formats may vary for each Implementation.
1.4 “Affiliate” means any legal entity that owns, is owned by, or is under common ownership with a Party with ownership of the shares, interests or assets of such legal entity or Party, as applicable.
1.5 “Approved Protocol” means a protocol that is approved by AdMeridian and allows the Publisher Media to communicate with AdMeridian Technology to source Advertisements. The list and definition of Approved Protocols include, but are not restricted to, XML (Extensible Markup Language) and Java Script.
1.6 “Business Day” means any day between Monday to Friday (inclusive) that is not a statutory holiday in Washington State.
1.7 “Calendar Day” means any day between Sunday to Saturday (inclusive).
1.8 “Click” means the act of an End User clicking on an Advertisement and accessing the Web page hyperlinked to that Advertisement.
1.9 “Confidential Information” includes any and all information or data of a Party that is disclosed to the other Party, either directly or indirectly, whether in writing, verbally, or by visual means, and which is designated (either in writing or verbally) as confidential, proprietary, or the like. However, such designation shall not be necessary to deem information as Confidential Information if the nature of the information makes it generally considered confidential commercially, which information includes information that relates to (a) trade secrets or know-how, (b) finance or accounting, (c) technology, research, or development, (d) internal processes or procedures, (e) algorithms, digital data, or designs, (f) business, operations, or planning thereof, (g) sales or marketing strategies, (h) the terms of any agreement between the Parties, and the discussions, negotiations, or proposals related thereto, including this Agreement.
1.10 “Customer Key” means a unique identifier allocated to Publisher by AdMeridian.
1.11 “Derivative Works” mean (i) any software, work product, improvement, modification, alteration, enhancement, new version, update, localization, upgrade, port, translation, design or documentation, in any medium, format or form whatsoever, that is derived in any manner, directly or indirectly, from the Services (including the AdMeridian Technology) or any part or aspect thereof, or that uses or incorporates the Services or any part or aspect thereof; (ii) all derivative works of the Services (including the AdMeridian Technology) as defined in the Copyright Law of the United States, Title 17 U.S.C. §101 et seq.; (iii) all materials and documentation (including AdMeridian Materials) related to the foregoing; and (iv) all Intellectual Property related to the foregoing.
1.12 “Direct Advertisers” mean advertisers who have contracted with AdMeridian to have their advertisements displayed on Publisher Media.
1.13 “Effective Date” means the date of this Agreement as stated above.
1.14 “End User” means any bona fide Internet user using the Internet (which excludes use of spiders, Web crawlers, any type of robot or other mechanical, artificial or automated means) who visits or browses the Publisher Media or any component thereof in good faith and in a legitimate manner that is (a) not fraudulent, (b) not motivated, incentivized, or solicited by expectations of monetary or other gain, and (c) done in a manner that is legal or in accordance with good faith business practices and public policy, as determined by AdMeridian at its sole discretion.
1.15 “AdMeridian Materials” include all text, images, illustrations, URLs, audio and multimedia files and/or text, technology, software, Web site data, source codes, digital files, customer lists, technical information, data, plans, user identifications, account numbers, encryption keys, digital certificates, account access and log-in information, passwords, and all other similar materials or information owned by or otherwise relating to AdMeridian or the Services (including the AdMeridian Technology). For the purposes of this Agreement and the Services offered pursuant to this Agreement, the term “AdMeridian Materials” shall also include Advertisements provided to Publisher from any Upstream Partner and/or Direct Advertiser.
1.16 “AdMeridian Technology” means AdMeridian's proprietary technology (including AdMeridian's software applications, tools and any related technology that provide Advertisements to a Publisher to monetize Internet traffic and that allow the Parties to earn money consideration for Sponsored Actions to the Advertisements displayed on Publisher Media), any hardware designs, algorithms, software (in source and object code), user interface designs, architecture, document type additions, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related Intellectual Property throughout the world and also including any Derivative Works, improvements, enhancements or extensions of AdMeridian Technology conceived, reduced to practice, or developed during the Term.
1.17 “Implementation” means the specific method of implementing the Services as further detailed in the applicable Implementation Schedule(s).
1.18 “Implementation Schedule” means the document entitled same (attached hereto as a schedule and incorporated as part of this Agreement) that details the Implementation and the restrictions specific thereto.
1.19 “Impression” means a single instance of displaying an Advertisement to an End User on Publisher Media.
1.20 “Initial Term” means the period commencing from the Effective Date and ending at 12 a.m. Central Time of the 1-calendar-year anniversary date thereof.
1.21 “Intellectual Property” means all rights, title, interest and benefit of a Party in and to intellectual property of every nature, whether registered or unregistered, including all copyrights, patents, trademarks, certification marks and industrial designs, applications for any of the foregoing, trade names, brand names, business names, trade secrets, proprietary manufacturing information and know-how, instruction manuals, inventions, inventor's notes, research data, blue prints, drawings and designs, formulae, calculations, processes, prototypes, source codes, digital files, technology and marketing rights, together with all rights under license agreements, sublicense agreements, strategic alliances, development agreements, technology transfer agreements and other agreements or instruments relating to any of the foregoing, that are owned by a Party hereto (and, in the case of AdMeridian, includes the Services, Derivative Works, AdMeridian Technology, and AdMeridian Materials).
1.22 “Invalid Actions” mean any Sponsored Action or activity that, at AdMeridian's sole determination, would not qualify for Revenue Share or would otherwise be subject to recouping of Revenue Share payments, including errors, fraud, Invalid Impressions, Prohibited Traffic, and Invalid Clicks.
1.23 “Invalid Click” means a click on an Advertisement that does not meet the definition of a Click hereunder, that does not comply with this Agreement, or that otherwise does not qualify as a Click as determined by AdMeridian at its sole reasonable discretion.
1.24 “Invalid Impression” means the display of an Advertisement that does not meet the definition of an Impression hereunder, that does not comply with this Agreement, or that otherwise does not qualify as an Impression as determined by AdMeridian at its sole reasonable discretion.
1.25 “Net Revenue” means the money amount AdMeridian receives from an Upstream Partner or Direct Advertiser, less Operational Costs, based on the number of Clicks on Advertisements associated with that Upstream Partner or Direct Advertiser, after applicable adjustments have been made to account for variables including taxes and Invalid Clicks.
1.26 “Operational Costs” includes (a) all costs associated with the set up and maintenance of the Services, and (b) all fees or commissions payable to third parties for sourcing or referring to AdMeridian Advertisements, Publisher Media, or Publisher.
1.27 “Organic Results” mean those results for a Search Keyword that are returned by AdMeridian for display on Publisher Media but are not entitled to a Revenue Share.
1.28 “Publisher Account” means a unique account specific to Publisher that is set up with AdMeridian to organize and manage the Services and the activities related thereto as they pertain to Publisher.
1.29 “Publisher Media” means the Web sites that are owned and/or controlled by Publisher and that display the Advertisements and/or Organic Results.
1.30 “Reporting Interface” means AdMeridian's Web-based interface that allows viewing of information related to the Services and Publisher's use thereof.
1.31 “Restricted IP Address” means an IP address for which AdMeridian does not provide the Services or Revenue Share. AdMeridian may amend this list at any time at AdMeridian's sole discretion.
1.32 “Restricted Traffic” means any traffic from Restricted URL or Restricted IP Address.
1.33 “Restricted URL” means any URL that AdMeridian identifies as a URL for which AdMeridian does not provide the Services or Revenue Share. AdMeridian may amend this list at any time at its sole discretion. A restricted URL may also be one where any of the following applies:
a. AdMeridian does not have the right to use or to associate data with that URL.
b. AdMeridian does not have the right to reproduce or distribute any of the content available at that URL.
c. The URL infringes or potentially infringes the intellectual property rights of any third party.
d. The URL violates any applicable law, regulation, or rule.
e. The URL is subject to a court order for an injunction or restraining order.
f. The URL is libelous, defamatory, or obscene or contains material that is any of the foregoing.
g. The URL contains software, viruses, worms, or other code that is or may potentially be damaging or harmful to a Party's computer system or stored information.
h. The URL is otherwise contrary to the intended use of the Services.
i. The URL is requested to be blocked by any Upstream Partner or Direct Advertiser.
1.34 “Revenue Share” means the percentage of the Net Revenue, as determined by AdMeridian at its sole discretion, which AdMeridian shall provide to Publisher in exchange for posting Advertisements on Publisher Media.
1.35 “Search Keyword” means the keyword that is being searched for on Publisher Media by the End User.
1.36 “Services” mean the services that AdMeridian provides to Publisher hereunder to implement and facilitate Publisher's use of AdMeridian Technology, including provision or use of the AdMeridian Materials, Publisher Account, Reporting Interface, Revenue Share, and technical/customer support.
1.37 “Sponsored Action” means any action carried out by an End User on or via Publisher Media in connection with Advertisements that is not an Invalid Action and that qualifies Publisher for Revenue Shares thereto. Current Sponsored Actions are further detailed in the Technical Guidelines.
1.38 “Technical Guidelines” refers to AdMeridian's standard written guidelines for an Implementation, as amended at any time by AdMeridian at its sole discretion, which includes details such as Approved Protocols, Advertisement Formats, and Sponsored Actions.
1.39 “Term” means the Initial Term or any Additional Term of this Agreement as is applicable.
1.40 “Upstream Partner” means a third party that sources and supplies Advertisements to AdMeridian for display on Publisher Media.
2. TERM & RENEWAL
2.1 Term. This Agreement shall remain in effect for the duration of the Initial Term and any Additional Term as defined hereunder.
2.2 Renewal. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive Additional Terms, unless either Party terminates this Agreement in accordance herewith.
3. THE SERVICES
3.1 Provision of Services. AdMeridian provides the Services subject to the terms of this Agreement and Publisher's compliance thereof.
3.2 Amendment of Services. AdMeridian may, at its sole discretion, add to, modify, cancel, or remove any of the Services, whether in whole or in part. Continued use of the Services after any modification thereto shall be deemed to be Publisher's agreement thereof. Publisher may request amendments to the Services by delivering to AdMeridian, in accordance with the notice provisions herein, written notice detailing the requested amendments. While AdMeridian shall endeavor to accommodate Publisher's requests, Publisher understands, acknowledges, and agrees that requests for amendments to the Services may be rejected in whole or in part at AdMeridian's sole discretion.
3.3 Implementation of Services. Publisher shall implement and make effective the Services into Publisher Media within 30 Business Days from the Effective Date in accordance with the following:
Publisher shall prevent spiders from crawling the pages where Advertisements are shown.
a. Sponsored Actions on Publisher Media shall be at the sole discretion of the End User.
Publisher shall not (or instruct or knowingly allow any third party to) provide the End User with any incentive to Click or generate false Impressions on Advertisements. The use of incentive programs, traffic exchange programs, and/or safe-lists is prohibited.
b. Publisher shall use the Services as-is and shall not modify (re-order, duplicate, modify, delete/omit) the Results.
c. Publisher shall not display Results on Publisher Media that contains any illegal content including child pornography.
d. Publisher shall seek approval for any Implementation on Publisher Media that contains Adult content.
e. Publisher shall provide AdMeridian with written notice at least 5 Calendar Days before increasing the volume of Sponsored Actions over 50% of the previous calendar month's daily average Sponsored Actions.
3.4 Non-Exclusive Service. Publisher understands, acknowledges, and agrees that AdMeridian may provide the Services to other parties and that such provision of Services to third parties may compete with Publisher's own use of the Services.
3.5 Objectionable Advertisements. Publisher understands, acknowledges, and agrees that the delivery of Advertisements is an automated process and, consequently, certain materials may be displayed on Publisher Media that may be objectionable to Publisher (for example, trademarked, illegal, or adult material). Upon written request from Publisher, AdMeridian shall take reasonable measures to remove content that is objectionable to Publisher, but AdMeridian cannot guarantee that all such requests can or will be met.
3.6 Reporting Interface. AdMeridian shall provide Publisher with access to the Reporting Interface to view records of Publisher's activities hereunder. Publisher understands and acknowledges that the Reporting Interface is for Publisher's reference purposes only and that the data contained therein may not be current or accurate at the time of viewing by Publisher. The data contained in the Reporting Interface is subject to adjustments at any time by AdMeridian at its sole discretion.
3.7 Resale. Publisher shall not sub-license or resell the Services, or any part thereof, to any third party. Notwithstanding anything in this Agreement to the contrary, if Publisher violates this Section 3.8, AdMeridian reserves the right to withhold or recoup, as applicable, that portion of revenue generated, and Revenue Share earned, as a result thereof.
3.8 Contact Information. Publisher shall provide AdMeridian with Publisher's current, complete, and accurate contact information, as requested by AdMeridian, and Publisher shall ensure that such information is updated and kept current, complete, and accurate at all times. 3.9 Right of Refusal. AdMeridian reserves the exclusive right to approve or reject Services to any Web site that forms part of Publisher Media.
3.10 Suspension & Cancellation. AdMeridian reserves the exclusive right to suspend and/or cancel any Publisher Account.
3.11 Discontinued Use. Publisher may discontinue the Services for Publisher Media by delivering to AdMeridian written notice of such discontinued use. Discontinued use of the Services for any or all of Publisher Media shall not terminate this Agreement; however, termination of this Agreement shall cancel and close all Publisher Accounts and all Services to the Publisher Media in connection thereto. This Agreement may be terminated only in accordance with the termination provisions herein.
3.12 Marketing & Publicity. Publisher consents to AdMeridian's use of Publisher's name, brands, logos, and other trademarks in AdMeridian's marketing materials and/or public disclosures (including press releases and Web sites). Publisher may use AdMeridian's name, brands, logos, or other trademarks only with the prior written consent of AdMeridian.
4. REVENUE SHARE & PAYMENT
4.1 Revenue Share. The Revenue Share shall be determined by AdMeridian at its sole reasonable discretion or as otherwise agreed in a separate written instrument executed by the Parties. All payments of Revenue Share, whether payable or already paid, shall be subject to withholdings and/or deductions based on AdMeridian's assessment of variables such as Invalid Activity and errors.
4.2 Operational Costs. The Revenue Share shall be calculated after deducting Operational Costs, as determined by AdMeridian at its sole reasonable discretion, from the gross revenue received by AdMeridian from Upstream Partners and/or Direct Advertisers.
4.3 Currency. Unless otherwise expressly stated herein, all money amounts referred to in this Agreement are in United States Dollars. Publisher shall solely bear the losses or gains from fluctuations in foreign exchange rates. AdMeridian shall be responsible for payment in U.S. currency only.
4.4 Payments. AdMeridian shall make payments to Publisher of the Revenue Share for a particular calendar month approximately 45 days after the end of that calendar month. For Revenue Share amounts in a particular month that do not reach at least $5,000 for wire transfer payments or $100 for check payments, such amount shall be rolled over to the following calendar month, and so forth, until the applicable minimum amount is reached and AdMeridian shall pay the Revenue Share to Publisher at that time. AdMeridian shall have no obligation to make any payment of the Revenue Share until all applicable tax forms (including Form-W8, Form-W9, and proof of tax exemption) are filled out correctly by Publisher and received by AdMeridian. Publisher shall be responsible, and AdMeridian shall not be responsible, for all applicable transactional fees (including wire transfer fees), which amounts AdMeridian may deduct from any payment of the Revenue Share.
4.5 Recouping Payments. AdMeridian reserves the right to recoup any payment made hereunder based on AdMeridian's assessment of variables such as, but not limited to, recouping of AdMeridian's revenue share from Upstream Partners, errors, fraud, and other Invalid Activity. AdMeridian shall be the sole determiner of what constitutes a variable that qualifies for recouping hereunder. AdMeridian agrees to provide documentation where available for recouped payments, including, but not limited to traffic and click counts, Publisher's SUBID, and Upstream Partner's feedback.
4.6 Taxes. Publisher understands, acknowledges, and agrees that all applicable sales, value-added, and other taxes required to be deducted by AdMeridian shall be deducted from the Revenue Share, unless Publisher provides AdMeridian with satisfactory proof of exemption.
4.7 Records. If there is any inconsistency or conflict between AdMeridian's records and that of Publisher or any other party, then AdMeridian's records shall be deemed the accurate and effective records at all times.
5. PUBLISHER'S OTHER OBLIGATIONS
5.1 Compliance. In using the Services, Publisher shall at all times act in good faith, in accordance with bona fide business practices, in compliance with the terms of this Agreement, and in compliance with all applicable laws, regulations, rules, and policies. Publisher shall also comply with any Implementation and technical requirements as specified in the Technical Guidelines and as determined and requested by AdMeridian from time to time. AdMeridian is not liable to pay any Revenue Share to Publisher if the Implementation does not meet the requirements in the Technical Guidelines and AdMeridian has provided notice to the Publisher of the changes made to the Technical Guidelines.
5.2 Ownership of Publisher Media. Publisher represents and warrants, and shall ensure at all times, that Publisher is at least one of the following in relation to the Publisher Media:
a. The owner and/or controller of the Publisher Media;
b. The licensor of the Publisher Media with authorization from the owner to use and/or control the Publisher Media in the manner contemplated herein; or
c. An agent of the owner of the Publisher Media and authorized to enter into this Agreement and use and/or control the Publisher Media in the manner contemplated herein. Upon AdMeridian's request, Publisher shall provide sufficient documentation (as requested by AdMeridian at its sole discretion) evidencing the above rights in the Publisher Media.
6. RESTRICTIONS
Without limiting any other term of this Agreement, breach of the following restrictions shall constitute material breach of this Agreement:
6.1 Conflicting Agreements. Publisher agrees that it shall not enter into any agreement or other arrangement that conflicts with this Agreement. If there is any conflict between this Agreement and any other agreement Publisher may be party to, then Publisher shall adhere to all the provisions of this Agreement despite the adherence constituting breach of such other agreement.
6.2 Illegal Activity & Abuse. Publisher shall not use the Services in a manner that is, or potentially is, illegal, a legal or other material risk to AdMeridian, generally objectionable in the Internet community, or degrading to the quality, goodwill, or reputation of AdMeridian and/or the Services.
6.3 Prohibited Traffic. Publisher shall not generate Internet traffic to the Publisher Media by any of the following methods, as determined by AdMeridian at its sole reasonable discretion: fraud; robotic computer program that runs automatically (such as spiders, Web crawlers, and all types of bots); listings on newsgroups; toolbars; spam or other bulk electronic mailing where the recipients are not opted in; ICQ or other messenger programs or applications; Internet Relay Chat or other chat room systems; iFrames; zero pixel frames; frames or windows displayed beyond the visible desktop; click farms or other similar methods; spy ware or other downloadable programs installed without the End Users' consent (collectively “Prohibited Traffic”). Notwithstanding any other provision in this Agreement to the contrary, if Publisher is found using or engaging in Prohibited Traffic, AdMeridian reserves the right, at its sole discretion, to immediately suspend the Services, immediately terminate this Agreement, and/or seek any other remedy or recourse as AdMeridian deems necessary, including withholding Revenue Share payments as of the date of the breach.
6.4 Restricted Traffic. Publisher shall not deliver or generate Internet traffic from or to Restricted URLs and/or Restricted IP addresses. Publisher is solely responsible, and AdMeridian is not responsible, for ensuring that Internet traffic delivered or generated from or to URLs associated with the Publisher Media are not Restricted URLs. Publisher is also solely responsible, and AdMeridian is not responsible, for blocking out requests from Restricted IP addresses.
6.5 Solicitation. Publisher shall not entice, persuade, provide incentives, obligate, pressure, or otherwise attempt to cause any third party (including End Users) to visit the Publisher Media related thereto or click on any Advertisements thereon.
6.6 Revenue Redistribution. Publisher shall not distribute or share any portion of the Revenue Share earned hereunder to any third party.
6.7 Source Code. Publisher shall not, and shall not permit any third party to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Services (including any AdMeridian Technology) to ascertain, derive, and/or appropriate for any reason or purpose the source code or source listings for any aspect of the Services or any trade secret information or process contained therein.
6.8 Storing Data. Publisher shall not index, cache, or otherwise store data obtained from the Services (including the Advertisements and Organic Results).
6.9 Modifications. Publisher shall not in any way modify the Advertisements or presentation thereof (including re-ordering the Advertisements or the URLs therein or eliminating any Advertisements). In no way shall Publisher display graphics or text in any form (including pop-ups, pop-unders, or exit windows) that block or otherwise limit the full and complete display to End Users of any aspect related to Advertisements. Publisher shall use the Advertisements and Organic Results as-is.
6.10 Disclosing Revenue Share. Under no circumstances shall Publisher disclose to any third party any aspect of the Revenue Share between the Parties, in whole or in part, and the Revenue Share shall be considered Confidential Information as defined herein.
6.11 Non-solicitation of Upstream Partner. During the Term or, if longer, for the duration that the Services are used by Publisher, and for a period of 1 calendar year thereafter, Publisher shall not, either directly or indirectly or in any capacity jointly or severally, solicit, induce, recruit or encourage business, or attempt to solicit, induce, recruit or encourage business, from any Upstream Partner any products or services competitive with the products or services contemplated by this Agreement.
6.12 Non-solicitation of Direct Advertiser. During the Term or, if longer, for the duration that the Services are used by Publisher, and for a period of 1 calendar year thereafter, Publisher shall not either directly or indirectly or in any capacity jointly or severally, solicit, induce, recruit or encourage business, or attempt to solicit, induce, recruit or encourage business, from any Direct Advertiser in connection with the Advertisements any products or services competitive with the products or services contemplated by this Agreement.
6.13 Cancellation of Services. In addition to any right or remedy provided for in this Agreement, AdMeridian reserves the right, at its sole discretion, to immediately suspend or cancel Services to all or any part of Publisher Media at any time if Publisher is in any breach of the restrictions hereunder. Such suspension or cancellation shall not terminate this Agreement. This Agreement may be terminated only in accordance with the termination provisions herein.
7. TERMINATION & SUSPENSION
7.1 Either Party. Either Party may terminate this Agreement immediately under the following circumstances:
a. If a Party breaches this Agreement and such breach is not cured within 10 Calendar Days of the breaching Party receiving from the non-breaching Party written notice to cure such breach.
b. If a Party materially breaches this Agreement and such material breach is not cured within 5 Calendar Days of the breaching Party receiving from the non-breaching Party written notice to cure such material breach.
7.2 For Convenience. AdMeridian may terminate this Agreement for convenience at any time upon provision to Publisher of 30 Calendar Days prior written notice of the termination.
7.3 Insufficient Activity. AdMeridian may terminate this Agreement upon 7 Calendar Days prior written notice to Publisher if the Publisher Account has no activity, is idle, or otherwise has insufficient Internet traffic generated to the Publisher Media, as determined by AdMeridian at its sole reasonable discretion.
7.4 Immediate Termination. This Agreement shall immediately terminate if Publisher:
a. makes a general assignment for the benefit of Publisher's creditors;
b. appoints or has appointed a receiver, trustee in bankruptcy or similar officer to take charge of all or part of Publisher's assets;
c. files or has a petition filed against Publisher in any bankruptcy; or
d. is adjudicated insolvent or bankrupt.
7.5 Immediate Suspension. AdMeridian may immediately suspend Services to Publisher or Publisher Media, in whole or in part, if Publisher's activities constitute those that are, in AdMeridian's sole determination:
a. illegal or potentially illegal;
b. a legal or other material risk, or otherwise harmful, to AdMeridian, its Affiliates, or any of their networks, infrastructure, and systems; or
c. a material abuse of the AdMeridian Technology or the Services, in whole or in part.
7.6 Upstream Partner Request. AdMeridian may immediately suspend Services or terminate this Agreement if any Upstream Partner makes a request to AdMeridian to take such action against Publisher.
7.7 Effect. Upon expiration or termination of this Agreement, all of the following shall take effect:
a. Publisher shall immediately cease all activities related in any way to this Agreement.
b. AdMeridian may withhold payments of the Revenue Share payable until AdMeridian has concluded its adjustments of the Revenue Share for variables such as, without limitation, errors, fraud, Invalid Activity, and violations under the Agreement. Once the adjustments have been finalized to AdMeridian's satisfaction, AdMeridian shall pay to Publisher the Revenue Share payable to Publisher within 60 days of termination or expiration of this Agreement.
c. The terms of this Agreement that by their nature continue beyond the expiration or termination of this Agreement shall continue to be effective (including the terms relating to payments, termination, Intellectual Property, limitation of liability, indemnity, Confidential Information, and governing law).
8. INTELLECTUAL PROPERTY
Neither Party shall, at any time during or after the expiration or termination of this Agreement, assert or claim any interest in, or do anything that may adversely affect the validity of, the Intellectual Property of the other Party (including registering or attempting to register any trademark of the other Party or a mark confusingly similar thereto). AdMeridian shall at all times retain sole and exclusive right, title and ownership in and to all of its Intellectual Property.
9. REPRESENTATIONS & WARRANTIES
9.1 Publisher represents and warrants to AdMeridian as follows:
9.2 Publisher has the full power and authority to execute, deliver, and perform under this Agreement.
9.3 This Agreement is valid, binding, and enforceable against Publisher in accordance with the terms herein and no provision requiring Publisher's performance hereunder is in conflict with Publisher's obligations under any other agreement or causes Publisher to be in breach of any other agreement.
9.4 Publisher (as applicable) is duly organized, authorized and in good standing under the laws of the jurisdiction of its organization and is duly authorized to do business in all other jurisdictions in which Publisher's business makes such authorization necessary or required.
9.5 Publisher has the full and exclusive right to grant or otherwise permit AdMeridian to access and use its Intellectual Property, and Confidential Information.
10. LIMITATION OF LIABILITY
Under no circumstances shall AdMeridian be liable to Publisher or to any other party for any consequential, indirect, special, incidental, reliance, exemplary, or punitive damages arising out of or relating to this Agreement and/or the Services, whether foreseeable or not, and whether based on breach of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, or other cause of action (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if AdMeridian has been advised of the possibility of such damages. Under no circumstances shall AdMeridian's aggregate liability to Publisher in connection with this Agreement and/or the Services exceed the aggregate amount of $10,000 regardless of the cause of action. 11. DISCLAIMER
11.1 No Warranties. AdMeridian makes no warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, or validity of the applications, software, data, or information related to AdMeridian's network, systems, AdMeridian Technology, or the Services. AdMeridian provides any and all aspects of the Services (including the AdMeridian Technology) “as-is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Publisher understands, acknowledges, and agrees that it shall use the Services, and all aspects thereof, at Publisher's sole risk. AdMeridian further expressly disclaims any and all warranties as to the appropriateness, validity, non-infringement, or legality of the content related to or residing on the Publisher Media, Advertisements, and Web pages linked thereto.
11.2 Content. Publisher understands, acknowledges, and agrees that the content in Advertisements, and Organic Results is generated by an automated process and that AdMeridian is not responsible for any such content. It shall be Publisher's sole responsibility, and not the responsibility of AdMeridian, to consistently monitor the Advertisements and/or the Organic Results and notify AdMeridian of any content that is illegal or that Publisher otherwise wants removed. AdMeridian does not guarantee that AdMeridian shall or can remove any content that Publisher requests to be removed, except for illegal or adult content that is within AdMeridian's ability to directly remove. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall AdMeridian have any liability or obligations arising from any Advertisements, Organic Results, any third party Web sites, or any content or information provided by Upstream Partners, Direct Advertisers, Publisher, Publisher's End Users, or any other third party.
11.3 Publisher Media. Publisher understands, acknowledges, and agrees that AdMeridian is in no way responsible for the registration, renewal, validity, maintenance, hosting or continued existence of any Publisher Media.
12. INDEMNIFICATION
Each Party agrees to defend, indemnify and hold harmless the other party and their respective directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) (collectively “Losses”) incurred as a result of any claim, judgment or proceeding relating to or arising out of such Party's breach of the Agreement, including such Party's gross negligence, intentional misconduct, or violation of an applicable law, statute or regulation.
If any action is brought against either Party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other Party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.
13. FORCE MAJEURE
Neither Party shall be liable for delays in its performance of this Agreement caused by circumstances beyond its reasonable control (“Force Majeure”), including acts of God, wars, riots, national disasters, earthquakes, strikes, fires, floods, shortages of labor or materials, labor disputes, transportation problems, accidents or governmental restrictions. Each Party shall make all reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure event.
14. CONFIDENTIALITY
Each Party (the “Recipient”) shall protect the confidentiality of any Confidential Information disclosed by the other Party (the “Discloser”) and shall not use such Confidential Information except in strict accordance with this Agreement. Confidential Information as defined herein does not include information that: (i) is generally available to the public through no fault of the Recipient and without breach of this Agreement; (ii) was already in the possession of the Recipient prior to disclosure by the Discloser and without any confidentiality obligation attached thereto, as evidenced by the Recipient's records existing prior to the time of disclosure; (iii) was disclosed to the Recipient by a third party without a breach of such third party's confidentiality obligations thereto; (iv) was independently developed by the Recipient without a breach of this Agreement or reliance on any Confidential Information; (v) is disclosed by the Recipient after obtaining the Discloser's prior written approval; (vi) is required to be disclosed by law, provided that the Recipient promptly notifies the Discloser of the legal obligation and provides the Discloser with a reasonable opportunity to seek a protective court order, or the equivalent.
15. NOTICES
15.1 Method. Any notice or other communication between the Parties required or permitted under this Agreement shall be in writing and shall be delivered by hand, sent by first class mail (postage prepaid), sent by commercial courier, or transmitted by electronic mail or facsimile to a Party at the contact information first mentioned above in this Agreement, or to such other contact information as the applicable Party may notify to the other Party.
15.2 Effectiveness. Any notice or other communication sent shall: (a) if delivered by hand, be deemed to have been received on the date of delivery; (b) if sent by first class mail, be deemed to have been received on the third Business Day following the date of mailing; and (c) if sent by electronic mail or facsimile, be deemed to have been received on the date the sender transmitted the notice or other communication.
16. COMPLETE AGREEMENT
This Agreement and all schedules attached hereto constitute the complete agreement between the Parties relating to the subject matter hereof and supersedes all prior and other understandings, representations, warranties, and agreements relating hereto, whether verbal, written, or otherwise. 17. NO THIRD PARTY BENEFICIARIES
This Agreement is for the sole benefit of the Parties, and does not create any rights on the part of any third party, and Publisher shall not commit any act or omission that would give rise to any such third party rights.
18. AMENDMENTS & WAIVER
AdMeridian may, at its sole discretion, make modifications to this Agreement, from time to time and as reasonably necessary. Such modifications shall take effect 14 Calendar Days from the date AdMeridian transmits a notice of such modifications via electronic mail to Publisher. Publisher acknowledges and agrees that Publisher's sole remedy is to terminate this Agreement, without liability, in accordance herewith if Publisher does not agree to any of the modifications AdMeridian may make to this Agreement. Publisher may not amend this Agreement except by a written instrument executed by both the Parties. No waiver by a Party of a breach of any provision hereof shall take effect or be binding upon that Party unless expressly waived in writing, and such waiver shall extend and apply only to the particular breach so waived and shall not limit or affect the rights of the waiving Party in respect of any future breach or in respect of any breach of any other provision hereof.
19. RELATIONSHIP OF THE PARTIES
Nothing in this Agreement shall be construed as creating a relationship of employer and employee, principal and agent, partnership or joint venture between the Parties. Each Party shall be deemed an independent contractor at all times and shall have no right or authority to assume or create any obligation on behalf of the other Party except as may be expressly provided herein.
20. ASSIGNMENT
Publisher shall not assign or otherwise transfer its respective rights or obligations under this Agreement without the prior written consent of AdMeridian, which shall not be unreasonably withheld. Any assignment or transfer in violation of this section shall be null. This Agreement shall be binding and have effect upon the Parties and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to confer upon any person, other than the Parties and their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under this Agreement. AdMeridian may assign this Agreement at its sole discretion to any of its Affiliates or as part of a merger or acquisition of all or substantially all of AdMeridian's shares or assets.
21. GOVERNING LAW & SEVERABILITY
This Agreement shall be governed and construed in accordance with the laws of the State of Washington without giving effect to any rule of conflicts of law. The federal or state courts located in Seattle, Washington shall have exclusive jurisdiction to hear any dispute under this Agreement. This Agreement shall not be governed by or construed in accordance with the United Nations Convention on Contracts for the International Sale of Goods. If any portion of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability shall not affect the validity of the remainder of this Agreement.
22. CONSTRUCTION & INTERPRETATION
References. All references in this Agreement to particular sections, titles, and Schedules shall be references to the sections, titles, and Schedules of this Agreement only unless specific reference is made otherwise. The words “herein”, “hereof”, “hereto”, and “hereunder” and words of similar meaning shall refer to this Agreement in its entirety and not to any particular provision of this Agreement.
22.1 Without Limitation. When used for listing purposes, the terms “for example,” “including” and/or “includes” shall be deemed to mean “for example, but not limited to,” “including, but not limited to” or “includes, but is not limited to,” as applicable. Wherever in this Agreement that the masculine, feminine or neutral gender is used, it shall be construed as including all genders, and wherever the singular is used, it shall be deemed to include the plural and vice versa, where the context so requires.
22.2 Translations. This Agreement has been executed in the English language. If there is any discrepancy or conflict between the English version and a version in any other language, then the English version shall control in all respects.
22.3 Contra Proferentum. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the interpretation of this Agreement
23. EXECUTION
This Agreement may be executed in multiple counterparts, and delivered via electronic mail or facsimile, each of which so executed shall be deemed to be an original, and such counterparts together shall constitute one and the same instrument. The individual executing this Agreement on behalf of Publisher represents and warrants that s/he is authorized to execute this Agreement on behalf of Publisher and, to the best knowledge of such individual, all representations made in this Agreement by Publisher are true and correct.