PUBLISHER SERVICE AGREEMENT - UNITED STATES
This Exchange Publisher
Service Agreement (this "Agreement") shall govern the
relationship between Mitera Collection, a New York corporation, located at 8 Irwin Ct. Lynbrook, NY 11563. ("Enterprise"), and the party requesting the
Services ("You" or "Publisher") with respect
to the advertising service (the "Service") offered through
Enterprise's exchange located at www.miteracollection.com (the "Site").
You and Enterprise may also be individually referred to herein as "Party"
and collectively as "Parties."
TO USE OR ACCESS THE SERVICES, YOU MUST
AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY
CLICKING "I ACCEPT" WHERE INDICATED. IF YOU DO NOT AGREE TO THESE
TERMS AND CONDITIONS, YOU HAVE NO RIGHT OR AUTHORITY TO ACCESS OR USE THE
SERVICES OR EXERCISE ANY OTHER RIGHT IN CONNECTION THEREWITH.
have registered for or on behalf of an entity, you are deemed to have accepted
this Agreement on behalf of such entity. To the extent Publisher is a network
of third parties, then Publisher shall be responsible to ensure that such third
parties comply with the terms of this Agreement and the terms of the applicable
Advertiser Program(s). If you do not agree to the terms of this Agreement in
its entirety, You are not authorized to: (a) register as a publisher; (b) use
the Service; and/or (c) use the Site, in any manner or form whatsoever.
Enterprise may, in its sole discretion, refuse to register You as a Publisher
and/or terminate Your participation in an Advertiser Program (as defined below)
at any time for any reason. To the extent that the terms of any Advertiser
Program are in conflict or inconsistent with this Agreement, this Agreement
shall take precedence and control.
to use the Site, the Service and any additional products and/or services
offered by Enterprise only in accordance with this Agreement. Enterprise
reserves the right to make changes to the Site, Service and this Agreement at
any time and the revised version of the Agreement shall become effective after
30 days of being posted on the Site. Following such 30 day period, Your
continued use of the Site and/or Service after any such modification thereof
shall constitute Your consent to such modification.
EXCHANGE. As a service provider and online
exchange, Enterprise facilitates affiliate marketing programs via its
technology and network on the Internet. An affiliate marketing program ("Advertiser
Program") is where a Publisher or its agent operates one or more
web site(s) (domain or portion of a domain within the Internet) and/or
subscription e-mail list(s) to earn financial compensation ("Publisher
Fees") for sales and or leads ("Transactions")
generated from such web site and/or e-mail list through a click made by a
customer (each, a "Customer") on a web site or content
operated by an advertiser ("Advertiser"). The Advertiser
compensates the Publisher, in accordance with this Agreement and the
specifications of the applicable Advertiser Program agreed to by the Advertiser
and the Publisher under a separate agreement.
consideration of the mutual covenants and agreements contained herein, the
parties, intending to be legally bound, hereby agree as follows:
in Advertiser Programs.
Publisher may apply to Advertiser Programs for the opportunity to earn
Publisher Fees by promoting Advertisers in accordance with the Advertiser
Program terms and this Agreement. Once approved by the Advertiser for
acceptance into its Advertiser Program, Publisher consents to and shall be
bound by the terms and conditions of the Advertiser Program and Publisher may
utilize links to Advertiser's web site or offers in accordance with the
Advertiser Program terms and this Agreement.
Program Terms. The terms, conditions and other details of an Advertiser
Program shall be available through the Site. Transactions qualifying for a
Publisher Fee are defined by the Advertiser, the Advertiser Program and the
Requirements with Enterprise.
a. Registration. To use the Site as a Publisher, You
must provide Enterprise with truthful, accurate and complete registration
information. If any such information changes, You must immediately contact
Enterprise to update Your registration information.
Information. Publisher agrees to provide Enterprise and Advertiser with
valid information about Publisher and Publisher's promotional methods, and to
maintain up-to-date account information, including contact information, web sites
used, ownership, and any other information requested by Enterprise or the
has the right to confirm and check the truth and accuracy of any registration
information at any time.
note that the verification of Your registration information, specifically,
name, address and tax identification number, against a third party database may
be considered under certain laws to constitute a "credit check" and
You hereby consent to any such verification process. Notwithstanding that, your
participation in the Services as a publisher does not depend on Your credit
worthiness or financial stability.
information is determined by Enterprise to be misleading, inaccurate or
untruthful, Enterprise may restrict, deny or terminate Your account, Your
access and use of the Services and the Site, and/or any benefits derived from
Your participation in any Advertiser Program, including the withholding or
forfeit (in whole or in part) of any Publisher Fees to Enterprise.
Publisher represents and warrants that all promotional means utilized by
Publisher (a) will not contain objectionable content (including but not limited
to content that is misleading, illegal, and/or promoting illegal goods,
services or activities), and (b) will not mislead others. You further represent
and warrant that the content of Your website and e-mails do not promote,
advocate, facilitate or otherwise include any of the following: (i) hate speech
or material that discriminates on the basis of race, ethnicity, gender, age,
disability, religion or sexual orientation; (ii) investment, money-making
opportunities or advice not permitted under law; (iii) violence or profanity;
(iv) pornographic, obscene, sexually explicit or related content; (v) material
that defames, abuses, is libelous, is tortuous or threatens physical harm to
others; (vi) material that displays any telephone numbers, street addresses,
last names, URLs, e-mail addresses, any confidential information or any other
personally identifiable information of any third person; (vii) material that
impersonates any person or entity; (viii) any indication that any statements
You make are endorsed by Enterprise and/or an Advertiser, without Enterprise's
and/or Advertiser's express prior written consent; (ix) promotion of illegal
substances or activities (e.g., illegal narcotics, how to build a bomb,
counterfeiting money); (x); content which is inappropriate or harmful to
children; (xi) promotion of terrorism or terrorist-related activities, sedition
or similar activities; (xii) software pirating (e.g., warez, hotline); (xiii)
hacking or phreaking; (xiv) any material that contains software viruses or any
other computer code, files or programs designed to interrupt, destroy or limit
the functionality of any computer software or hardware or telecommunications
equipment; (xv) any software, product or service that is illegal or that
violates the rights of a third party including, but not limited to, spyware,
adware, programs designed to send unsolicited advertisements (i.e.
"spamware"), services that send unsolicited advertisements, programs
designed to initiate "denial of service" attacks, mail bomb programs
and programs designed to gain unauthorized access to networks on the Internet;
(xvi) any software, product or service that harvests or collects the personal
information of Internet users, whether or not for commercial purposes, without
the express consent of such users; (xvii) any spoofing, redirecting or
trafficking from other websites in an effort to gain traffic; (xviii) any
content that infringes upon the intellectual property rights of any third party
or any other right including, without limitation, false advertising, unfair
competition, invasion of rights of publicity or privacy; (xix) gambling, contests,
lotteries, raffles, or sweepstakes; (xx) any material that violates CAN-SPAM or
any similar or comparable laws in any other country or jurisdiction in which
You operate; or (xxi) any illegal activity whatsoever (including any violations
of applicable U.S. state or federal law or regulation, Canadian provincial or
federal law or the laws of any other country or jurisdiction in which You
operate).The Enterprise Transparency Department may review Publisher
information, conduct and any suspected fraudulent, abusive or otherwise illegal
content or activity. Any validated breach of this Section is grounds for
immediate termination of this Agreement, forfeit of Publisher Fees, and
deactivation of Publisher's account.
Method Restrictions. Publisher agrees that it shall comply with all laws
and regulations and will not engage in spamming, unlawful mass emailing or any
unapproved emailing or in any way fail to comply with the CAN SPAM Act of 2003,
15 U.S.C. 7701, et seq., as amended, or any comparable laws, rules or
regulations in any country from or to which Publisher is accessing the Site or
the Services or participating in any Advertiser Program, that govern email
marketing and advertising. Publisher agrees that its promotional activities
will not infringe on the Advertiser's intellectual property rights, including
but not limited to copyright and trademark rights.
shall not perform trademark bidding or direct linking on search engines
including on Google, Yahoo and MSN, when the applicable Advertiser Program
prohibits such activity. By "direct linking" this agreement refers to
sending traffic directly from the search engine to the Advertiser website
without use of an intermediary landing page.
reserves the right at any time to further restrict what activities are
considered valid and will entitle Publisher to Publisher Fees under this
Agreement. Enterprise reserves the right to withhold, refuse or withdraw
approval of any websites, email distribution lists and/or marketing channels
for any reason, whatsoever, in Enterprise's sole discretion. Only Publisher's
websites, e-mail distribution lists or other marketing channels that have been
reviewed and approved by Enterprise may be utilized in connection with the Site
and Tags. Publisher shall not alter, modify or otherwise change the
creative content, links and code used to create the advertisements, text link,
banner ad or coupon ("Creative"), or any Creative-related feature,
that it obtains access to in connection with any Advertiser Program in any
manner whatsoever, without Enterprise's prior express written consent.
AGREES TO REVIEW THE AVAILABILITY OF CREATIVE THAT IT HAS PLACED WITHIN ITS
MEDIA ON A DAILY BASIS. IT IS THE PUBLISHER'S RESPONSIBILITY TO CHANGE CREATIVE
WITHIN ITS MEDIA WHEN THE CREATIVE IS NO LONGER AVAILABLE ON THE SITE.
Enterprise ASSUMES NO RESPONSIBILITY TO NOTIFY PUBLISHER WHEN A SPECIFIC
CREATIVE IS NO LONGER AVAILABLE ON THE SITE.
addition, Site integration tags and tracking pixels ("Tags")
included in the Creative or otherwise incorporated may not be altered under any
circumstances. Enterprise employs a testing system to determine whether You
have removed or altered the Tags. Altering, removing or disabling Tags may
jeopardize Your ability to be paid for Transactions and is grounds for
immediate termination of Your Publisher account, with or without notice. You
will not, nor knowingly permit any person to, activate Creatives or inflate the
amount of Transactions through any deceptive or misleading practice, method or
technology including, but not limited to, the use of any spyware, device,
program, robot, Iframes, hidden frames, redirects, spiders, computer script or
other automated, artificial or fraudulent methods designed to appear like an
individual, real live person performing a Transaction.
Identifiable Information of Visitors. Publisher represents and warrants
that Publisher will not enable the tracking code to collect personally
identifiable information of Customers or potential Customers that would allow
You to personally identify such Customer or potential Customer.
Policies. You will ensure that any and all websites employed by You in
connection with Your participation in any Advertiser Programs will feature an
such website's home page, with a link that contains the word
"Privacy", "Legal", "Terms" or similar language.
practices, identify the collection, disclosure and use of any information
related to an end user that You provide or may provide to Enterprise and to any
information on your use of tracking devices, such as but without limitation to,
cookies, including tracking devices enabled by Enterprise at your request on
your behalf. Your website will also include, where required, information
regarding the removal of cookies and other tracking devices.
REMEDIES. IN ADDITION TO ANY REMEDIES AVAILABLE TO Enterprise OR THE
APPLICABLE ADVERTISER, PUBLISHER SHALL FORFEIT ANY AND ALL PUBLISHER FEES
DURING THE PERIOD IN WHICH PUBLISHER WAS IN VIOLATION OF THIS AGREEMENT.
to Site and Service.
Advertiser Program data compiled by Enterprise including, but not limited to,
numbers and calculations regarding Transactions and associated Publisher Fees
("Program Data"), will be calculated by Enterprise through the
use of Enterprise proprietary tracking technology and shall be final and
binding on You. Any questions regarding the Program Data must be submitted in
writing within fourteen (14) days of initial appearance in the tracking system;
otherwise the Program Data will be deemed to be accurate and accepted by You.
Publisher understands and agrees that on occasion the Service and/or the Site
may be inaccessible, unavailable or inoperable. Enterprise will attempt to
provide the Service on a continuous basis, but is under no obligation to
provide the Service or maintain the availability of the Site on a continuous or
uninterrupted basis. Enterprise's failure to deliver the Service because of
technical difficulties does not represent a failure to meet the obligations of
Publisher Fees. Enterprise shall track actual Publisher Fees that should be
credited to Publisher's account. Enterprise may, from time to time in its sole
discretion, apply an estimated amount of Publisher Fees if there is a verified
error in Advertiser's tracking code.
to Tracking and Reporting Tools. Enterprise shall provide Publisher with
access to tracking and reporting tools via the Site, and to other various
support services that may be updated from time to time on the Site.
Support for Publisher's program is available by contacting Enterprise and
reaching the appropriate person or support services.
of Publisher Fees. Subject to other provisions in this Agreement,
Enterprise shall credit Publisher's account with a Publisher Fee for each
qualifying Transaction in accordance with the Advertiser's payout rate and
Advertiser Program terms. On at the end of each calendar month, Enterprise will
credit to Publisher any positive balance in Publisher's account for
Transactions reported for the applicable period. Enterprise shall have no
obligation to make payment of any Publisher Fees for which payment has not
cleared to Enterprise of all monies due to Enterprise, including for all
Publisher Fees owed by such Advertiser to all of Advertiser's Publishers. If
Enterprise receives partial payment Enterprise may apply such partial payment
first against the fees due to Enterprise from such Advertiser and Publisher
agrees that it shall pursue any and all legal remedies only against the
applicable Advertiser that has not made funds available to pay sums due and
owing to Publisher for Publisher Fees earned in connection with a particular
Advertiser Program, subject to the terms and conditions of the applicable
Publisher Fees will be paid in US Dollars ($US). Notwithstanding anything
contained herein to the contrary, no Publisher Fees will be issued for any
amounts due to Publisher that total less than thirty dollars ($30.00) ("Payment
Advertiser may request that Enterprise, or Enterprise may on its own
initiative, debit from the Publisher Fees an amount equal to a Publisher Fee
previously credited to Publisher's account where: (a) a return or cancellation
has been made with respect to the applicable product and/or service; (b) there
is an instance of a duplicate, fraudulent or incomplete entry or other similar
error with respect to a Customer order; (c) there are Transactions that do not
comply fully with the terms of this Agreement or the applicable Advertiser
Program; (d) there is non-receipt of payment from, or refund of payment to, the
Customer that entered into the subject Transaction; (e) there is any failure on
the part of the Publisher to comply with this Agreement and or applicable
Advertiser Program terms; or (f) any other amounts paid in error or due
Advertiser from Publisher (collectively referred to as a "Reversal").
Unless otherwise set forth in the applicable Advertiser Program, Reversals
requested by an Advertiser in accordance with this Section for Customer refunds
and chargebacks may be applied up to sixty (60) days after the end of the month
in which the applicable Publisher Fee was earned ("Reversal Period").
For the avoidance of doubt, there is no time restriction on any other
Reversals. Advertiser may request that the payment of a Publisher Fee be
postponed for one (1) payment cycle where: (i) Advertiser is verifying a lead
(for Advertiser Programs in which lead generation is a component of the
Transaction); (ii) Advertiser has a product return policy that allows the
underlying purchaser to return the product during the Reversal Period; or (iii)
the applicable Advertiser Program provides for such a postponement. The number
or amount of Transactions, credits for payments and debits for Reversals, as
calculated by Enterprise, shall be final and binding on Publisher.
acknowledge that, with respect to any Advertiser Program, Your entitlement to
any compensation reported with respect to any tracked activity (if such
activity is reported) stems solely from the terms of your agreement with the
relevant Advertiser and that such Advertiser is solely responsible for its
Enterprise monitors traffic, Transactions, Publisher Fees and other Advertiser
Program-related activities for potential fraud. If Enterprise suspects that
Your account has been used in a fraudulent manner, Your account may be
deactivated effective immediately and with no notice to You pending further
investigation. Enterprise reserves sole judgment in determining fraud and You
agree to be bound by any and all such determinations. It is the obligation of
Publisher to prove to Enterprise that it has NOT engaged in fraud. If you are
unable to provide Enterprise with satisfactory evidence that You have not
engaged in fraud within seven (7) days of Your Publisher Fees being placed in "Pending
or Delayed Status," then Enterprise may terminate Your account and cancel
payment on the applicable Publisher Fees, at its sole discretion and without
any further obligations to You. For the avoidance of doubt, if You add
Transactions, or inflate Transactions, through the use of fraudulent means of
traffic generation, as determined solely by Enterprise, You will forfeit all of
the Publisher Fees related to that Advertiser Program, and Your account may be
terminated effective immediately.
of Site and Services. You may not use the Site or the Service in connection
with aggregating, soliciting or recruiting Advertisers, other publishers, other
sites or other persons to form or join a marketing, advertising or similar
to Advertisers. For
each Advertiser Program that Publisher has applied to and been accepted to, the
Advertiser is granting to Publisher the right to link to the Advertiser's web
site or web offers in accordance with the Advertiser Program terms and this
Use of Publisher's Information. Publisher authorizes Enterprise to utilize
Publisher's otherwise protected information subject to the provisions of
Section 5 below related to confidentiality of Publisher's identification and
Grant to Publisher. Subject to this Agreement and the terms of the
applicable Advertiser Program, Enterprise grants to Publisher a revocable,
non-transferable, royalty free, license to use the Site and the applicable
tracking code. Publisher may not remove or alter any copyright, service marks
or trademark notices. Enterprise reserves any and all rights not explicitly
granted in the Agreement.
Party will take commercially reasonable actions designed to protect the
Confidential Information of the other Party from misappropriation and
unauthorized use or disclosure, and at a minimum, will take precautions at
least as great as those taken to protect its own confidential information of a
similar nature. The receiving Party may disclose Confidential Information of
the disclosing Party to the extent necessary to comply with applicable Law.
Upon request of the other Party, or in any event upon any termination or
expiration of this Agreement, each Party will return to the other or destroy
all materials, in any medium, which contain, embody, reflect or reference all
or any part of any Confidential Information of the other Party. This Agreement
shall be the Confidential Information of Enterprise.
Party will be entitled to seek preliminary and/or permanent injunctive relief
from any violation or threatened violation of this Section 5 without the
necessity of proving actual damages or posting any bond or other security.
Information" means all confidential and/or proprietary information and
documents furnished or disclosed by or on behalf of a Party or its affiliates,
no matter when or how furnished or disclosed. Confidential Information
includes, without limitation, (a) all nonpublic information relating to a
Party's or its affiliates' technology, business plans, agreements, promotional
and marketing activities, finances and other business affairs, and (b) all
third party information that a Party or its affiliates is obligated to keep
confidential. Confidential Information may be contained in tangible materials,
such as drawings, data, specifications, reports and computer programs, or may
be in the nature of unwritten knowledge. Confidential Information does not
include any information that (w) has become publicly available without breach
of this Agreement, (x) can be shown by documentation to have been known to the
receiving Party at the time of its receipt from the disclosing Party or its
affiliates, (y) is received from a third party who did not acquire or disclose
such information by a wrongful or tortious act, or (z) can be shown by
documentation to have been independently developed by the receiving Party
without reference to any Confidential Information.
provided elsewhere herein, Publisher must send all notices relating to this
Agreement in writing via overnight mail or fax: Mitera Collection, 8 Irwin Ct. Lynbrook, NY 11563. All notices from Enterprise shall be sent to the address submitted by
You when You sign up for the Service.
Agreement shall commence upon Enterprise's acceptance of Your publisher
application and remain in effect until terminated as set forth herein.
party may terminate this agreement at any time. In addition, Enterprise
reserves the right, in its sole and absolute discretion, to terminate an
Advertiser Program, suspend Your participation in an Advertiser Program and/or
remove any Creatives at any time for any reason. Enterprise also reserves the
right to terminate Your access to the Site at any time. Termination notice may
be provided via e-mail and will be effective immediately. Upon termination,
Publisher agrees to immediately remove from its Publisher website(s) any and
all Creatives, Enterprise code or other intellectual property made available to
Publisher in connection with its performance under the Agreement. The
representations, warranties and those obligations that by their terms and
context show the Parties intended them to survive the termination of this
Agreement for any reason, including provisions governing confidentiality,
ownership, indemnification and liability, shall survive the expiration or
earlier termination of this Agreement.
Representations and Warranties.
Parties hereby acknowledge and agree that Publisher is solely responsible for
the method in which the Creatives are disseminated. You represent and warrant
that You will not engage in any activities that violate any Advertiser
Program's terms and conditions. Moreover, You represent and warrant that: (a)
Your Publisher website and/or Publisher e-mails are represented by a legitimate
second-level domain name (e.g. yoursite.com is acceptable; however, a shared
server, e.g., sharedsite.com/yoursite, is not acceptable); (b) Your Publisher
website is not offered as a part of a community-based website personal entry or
personal page; (c) Your Publisher website and Publisher e-mails do not
incentivize users to click on Creatives, including by awarding users cash,
points, prizes, and/or contest or sweepstake entries or any other incentives
("Incentives"); (d) Your Publisher Website is not hosted by a free
service and is fully functional at all times and at all levels (no "under
construction" Publisher Websites or any sections thereof are permissible);
(e) You will place or use the Creatives only with the intention of delivering
valid Transactions as determined by, and for the benefit of, the applicable
Advertiser; (f) You will not violate guidelines of any search engines being
utilized; (g) You will not allow the Creatives to be placed on any
non-Publisher website without the prior express written consent of Enterprise
and the applicable Advertiser; (h) You will not use any Creatives or any other
Advertiser Program terms and/or content in connection with aggregating,
soliciting or recruiting other Publishers, Advertisers, other websites or other
persons to form or join an affiliate marketing, advertising or similar network
for the purpose of engaging in business of the type conducted by Enterprise;
(i) You will not redirect traffic to a website other than the website
specifically listed by the applicable Advertiser; (j) Your performance under
this Agreement shall not in any way violate or infringe upon any third party
rights, including rights regarding ownership, trade secrets, trademarks,
copyright or patents; (k) You shall protect, promote and preserve the goodwill
associated with the Advertiser trade name and any Customer relationships in
connection with its performance hereunder; (l) in performing Your obligations
and exercising Your rights under this Agreement, You shall comply with all
applicable laws (and all changes in laws) relating to or affecting this
Agreement or the work to be performed hereunder, and (m) You shall obtain and
maintain all permits, licenses, and consents required in connection therewith.
Limitation of Liabilities.
WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT
LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO YOU OR ANY
OTHER PERSON OR ENTITY FOR COST OF COVER, LOST PROFITS, LOSS OF BUSINESS, DATA
OR REPUTATION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT.
AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT WILL IN NO
EVENT EXCEED FIFTY PERCENT (50%) OF THE TOTAL FEES PAID OR ACCRUED BY YOU TO
ENTERPRISE DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH
AND THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED
(INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A
PARTICULAR PURPOSE). THE SITE AND THE SERVICE MAY CONTAIN BUGS, ERRORS,
PROBLEMS OR OTHER LIMITATIONS. ENTERPRISE HAS NO LIABILITY, WHATSOEVER, TO
PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER'S USE OF, OR INABILITY TO USE, THE
SITE OR THE SERVICE AND ENTERPRISE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS
AND IMPLIED, THAT PUBLISHER'S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE
OR THAT ANY OF THE ADVERTISER PROGRAMS WILL BE AVAILABLE TO PUBLISHER.
ENTERPRISE SHALL NOT BE RESPONSIBLE FOR THE FAILURE OR OTHER ACTS OR OMISSIONS
OF ANY ADVERTISER.
Publisher shall indemnify, defend, subject to Section 11(b), and hold harmless,
Enterprise and its respective parents, subsidiaries and affiliates, and each of
their respective directors, officers, employees, agents, successors and assigns
against any third-party claim, suit, action, judgment, allegations, or lawsuits
("Claims"), for any damages, fines, penalties, deficiencies,
losses, liabilities, obligations, costs and expenses (including without
limitation reasonable attorneys' fees, costs related to in-house counsel time,
court costs and witness fees) (collectively "Losses") or any
threatened Losses arising from or in connection with Publisher's breach of this
Agreement or intentional acts or omissions or for Claims of product liability.
any Claim give rise to Publisher's duty of indemnification under this
Agreement, Enterprise shall notify Publisher, and Enterprise shall have the
right to assume control of the defense of any such Claim; provided that
Publisher shall reimburse Enterprise for all costs of the defense. If
Enterprise assumes the defense, Publisher shall participate in (at Publisher's
own expense), but not control, the defense of such Claim. Participation in the
defense shall not waive or reduce Publisher's obligations to indemnify or hold
Enterprise harmless. If Publisher is permitted to control the defense,
Enterprise may participate in the defense. In no event shall Publisher settle
any Claim without the express written consent of Enterprise.
Severability, Waiver, Remedies Cumulative.
provisions of the Agreement which are determined to be invalid or unenforceable
in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability
in such jurisdiction, without rendering invalid or unenforceable the remaining
provisions of this Agreement or affecting the validity or enforceability of
such provision in any other jurisdiction. A Party's waiver of any term or
condition of this Agreement shall not be deemed a continuing waiver. The rights
set forth in this Agreement are cumulative and in addition to those otherwise
provided by law and may be exercised concurrently or separately, and the
exercise of any one remedy shall not be deemed an election of such remedy to
the exclusion of other remedies.
Party shall assign or transfer this Agreement, in whole or in part, without the
prior written consent of the other Party, and any such assignment without
consent shall be void, provided that either Party may, upon prior written
notice to the other party, assign or transfer this Agreement, in its entirety
only, to an affiliate capable of performing its obligations hereunder or to an
entity acquiring all or substantially all of the operating assets of the
Jurisdiction and Venue.
Agreement shall be construed, governed and enforced under and in accordance
with the internal laws of the Commonwealth of New York. Any and all disputes or
controversies whether of law or fact of any nature whatsoever arising from or
with respect to this Agreement shall be decided by arbitration by the American
Arbitration Association ("Arbitrator"), in accordance with the rules
and regulations of that Arbitrator. Arbitration shall take place in New York,
shall not be liable to Publisher by reason of failure or delay in the
performance of its obligations hereunder on account of telecommunications,
Internet or network failure or interruption, results of computer hacking, Acts
of God, fires, storms, war, governmental action, labor conditions, earthquakes,
natural disasters or any other cause which is beyond the reasonable control of
and performing this Agreement, the Parties are acting and shall act as
independent contractors, and neither party is, nor will be deemed to be, an
agent, legal representative, joint venturer or partner of the other party for
Entire Agreement; Headings.
Agreement constitutes the entire agreement between the Parties with respect to
the subject matter hereof and supersedes all prior or contemporaneous,
negotiations, representations, agreements or understandings with respect
thereto, whether written or oral. Captions and headings contained in this
Agreement have been included for ease of reference and convenience and shall
not be considered in interpreting or construing this Agreement.
any legal presumption to the contrary, any provisions that by their terms are
intended to survive termination, shall survive termination or expiration of
agreement was last updated on August 6th, 2016
8 Irwin Ct.
Lynbrook, NY 11563