Envyus Media ("Envyus"), and Publisher ("Publisher"), enter into this Publisher Agreement ("Agreement") to establish the terms and conditions by which Publisher may enter the Envyus Lead Generation Network ("Envyus Network") and market advertisements on behalf of Envyus and/or its customers through the placement of offers. Offers may be in the form of banners, text links, transactional ads, email or other electronic promotions. Envyus and Publisher agree to be legally bound as follows:
"Ad" or "Creative" means the graphic or text file(s) made available to Publisher to market on behalf of Envyus and/or its Advertisers.
"Advertiser" or "Customer" means Envyus and/or the advertiser or advertising agency providing Ads to Envyus for use on Publisher's Website(s) as specified herein.
"Click," "Click-Thru" or "Click-Through" means the activation of a hyperlink using a mouse or other input device as measured by Envyus.
"Flight Dates" means the time period, and associated start and end dates, over which an Ad runs.
"Impressions" means the number of times an Ad is served to, and received by, a unique visitor on Publisher's website(s) or other media as measured by Envyus.
"Network IP" means the Ads, Envyus Code or other intellectual property made available to Publisher in connection with its performance under this Agreement.
"Publisher Media" shall mean the website(s), search engine(s) or other electronic media on which Publisher places Ads.
"Unit" means a User's completion of the act requested by Envyus and/or the applicable Advertiser supplying Ads through the Envyus Network. If a User is directly compensated for completing such required action, such action is not considered a Unit.
"User" means any person accessing Publisher's Media.
"Envyus Code" means pixels, intellectual property or other computer code provided by Envyus for use by Publisher.
2. ENVYUS NETWORK
Envyus reserves the right to refuse service to any new or existing Publisher for any reason, in its sole discretion. Envyus reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Publisher or website for any reason at any time with or without notice. Without limiting the foregoing, Envyus reserves the right to require a potential or existing Publisher to submit detailed descriptions or explanations of the Publisher's website(s) or application(s) functionality and back-end technology. Refusal to participate or answers deemed unsatisfactory constitute grounds for non-acceptance or termination from the Envyus Network. This Agreement is voidable by Envyus immediately if Publisher fails to disclose, conceals or misrepresents itself in any way.
2.1 Publisher Networks.
Any Publisher that consists of an aggregation of publishing affiliates, (collectively, a "Publisher Network," representing one or more "Sub-Publishers"), hereby agrees to the following terms and conditions:
(i) All network partners must identify themselves as same, up-front, and expressly agree to the terms of the Envyus Network-To-Network Service Agreement. The failure to do so constitutes a material breach of this Agreement, grounds for immediate termination without notice, and a forfeiture of all unpaid commissions.
(ii) Publisher Network shall provide Envyus with contact information for any Sub-Publisher within 24 hours of Envyus' request. Contact information shall include, without limitation, contact name, mailing address, telephone number, and email address.
(iii) Within 24 hours of Envyus' request, Publisher Network shall remove any Sub-Publisher from Envyus' and/or its Advertisers' campaign(s).
(iv) Publisher Network shall be responsible and liable for each Sub-Publisher's conduct and compliance under this Agreement and Publisher Network shall indemnify, defend and hold harmless Envyus and its officers, directors, employees, agents, representatives, shareholders, affiliates, and Advertisers (collectively "Envyus Parties") from and against any and all allegations, claims, actions, causes of action, lawsuits, inquiries, investigations, damages, 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") incurred by, or imposed or asserted against, the Envyus Parties arising from or relating to a Sub-Publisher's breach of any obligation, duty, representation or warranty under this Agreement.
(v) Nothing in Envyus' permission to engage Sub-Publisher's may be construed as extending to any Sub-Publisher the status of third-party beneficiary of any agreement between Envyus and you, including without limitation this Agreement.
2.2 Non-Solicitation of Network Members.
During the term of this Agreement and for six months thereafter, Publisher shall not knowingly solicit any on-line advertiser, publisher, website, or email provider that is a member of the Envyus Network. In the event Publisher does so directly contract with such a party, Publisher shall pay Envyus an additional commission equal to what Envyus would otherwise have earned had Publisher not violated this Section 2.2.
2.3 Sharing of Network Member Information.
Envyus may provide Publisher information, including but not limited to application information, account information, and statistics to: (i) Advertisers in response to their request or in the event of a dispute; (ii) law enforcement officials or governmental agencies in response to their request, when permitted or required by law or to establish Envyus' compliance with applicable laws, rules, regulations, or guidelines; and/or (iii) third parties when trying to protect against or prevent actual or potential fraud or unauthorized transactions, investigating fraud that has already taken place, enforcing or applying existing terms and conditions and/or other agreements, protecting the rights, property or safety of Envyus, Users or others, or responding to subpoenas, court orders or legal process, or to establish or exercise legal rights or defend against legal claims. Any legal action taken by an advertiser, agency, client, person, or entity against Envyus for actions of Publisher that violate these terms and conditions, Publisher accepts that Envyus will work with the advertiser, agency, client, person, or entity to divulge your personal information. You also agree that Envyus is not liable for Publisher actions, and Publisher will bear all costs (legal or otherwise) that Envyus incurs if Envyus is sued by advertiser, client, agency, person, or entity.
2.4 Network Services.
Publisher understands and agrees that from time to time the services provided by Envyus pursuant to this Agreement ("Network Services"), including the Envyus advertising campaigns, may be inaccessible, unavailable or inoperable for any reason, including without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Envyus may undertake from time to time; and/or (iii) causes beyond the control of Envyus or that are not reasonably foreseeable by Envyus, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation or inaccessibility of websites or interfaces, network congestion, or other failures. While Envyus will attempt to provide the Network Services on a continuous basis, Publisher acknowledges and agrees that Envyus has no control over the availability of the Network Services on a continuous or uninterrupted basis. Publisher also understands and agrees that Envyus is not responsible for the functionality of any third party website, interface, link, or Ad, including but not limited to those of its Advertisers. The terms of this Agreement are subject to the limitations of Envyus hardware, software and bandwidth. Envyus' failure to deliver the Network Services because of technical difficulties does not amount to a failure to meet the obligations of this Agreement.
3. PROHIBITED CONDUCT
Envyus will not accept traffic from websites that contain, produce, promote, relate to, or have characteristics of Prohibited Conduct. Envyus will not compensate Publisher for traffic generated through Prohibited Conduct. "Prohibited Conduct" means:
(i) Ad Placement & Tracking. Publisher shall not: (1) redirect traffic to a website other than that listed by the particular Advertiser; (2) use invisible methods to generate Impressions, Clicks, or transactions that are not initiated by the affirmative action of the User; (3) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the website tags, source codes, links, pixels, modules, or other data provided by or obtained from Envyus that allows Envyus to measure Ad performance and provide its services; or (4) block, mask or alter a referring URL.
(ii) Websites. Publisher shall not place any Ads or Network IP on websites that contain, promote, reference, or have links to: (1) blank web pages or on web pages with no content; (2) profanity, sexually explicit material, hate material, material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other material deemed unlawful, unsuitable or harmful to the reputation of Envyus and/or its Advertisers; (3) software piracy, hacking, phreaking, emulators, ROM's, or illegal MP3 activity; (4) illegal activities or advice; (5) deceptive acts or practices; (6) violations of the intellectual property or privacy rights of others; (7) personal web pages, non-English language pages, free hosted pages, or websites under construction; (8) charity clicks/donations, paid to surf, Active X downloads, all affiliate links; or (9) activities generally understood as abuse, including but not limited to the sending of unsolicited bulk electronic mail or the use of Spyware. For purposes hereof, "Spyware" shall mean computer programs or tools that: (i) alter a computer User's browser or other settings or use an ActiveX control or similar device to download ad supporting software without providing fair notice to and obtaining affirmative consent from the User; (ii) prevent a computer User's reasonable efforts to block the installation of or disable or remove unwanted software; (iii) remove or disable any security, anti-Spyware or anti-virus technology on a User's computer; (iv) send email through a User's computer without prior authorization; (v) open multiple, sequential, stand-alone advertisements in the User's Internet browser which cannot be closed without closing the Internet browser or shutting down the computer; or (vi) other similar activities that are prohibited by applicable law.
(iv) Email. Publisher shall comply strictly with all local, state, and federal laws and regulations, including without limitation, the CAN SPAM Act of 2003 and its subsequent amendment(s). Without limiting the generality of the foregoing, Publisher specifically agrees to the following:
(a) Email sent as part of a email campaign on Envyus' behalf (each, an "Email Campaign") may be sent only to those recipients who have affirmatively agreed in advance to receive such transmissions from Publisher at the email address to which the email will be sent (i.e., "opted-in").
(b) Publisher is responsible for the source, content and use of its email list. Email addresses may not be obtained by the use of a program for random generation of email addresses and/or "scraping" web sites or online services.
(c) Envyus may provide Publisher with written approval or rejection of any such email campaign.
(d) Publisher must update its email list against Envyus' suppression lists as provided by Advertisers from time to time as directed by Envyus.
(e) Publisher may not send email that contains a sender name or email address that does not accurately identify the sender.
(f) Publisher may not send email from invalid originating domains or make use of multiple originating domains or multiple originating email addresses that could be construed in any way as circumventing spam filters or blacklists.
(g) Publisher may not use a Client's name (including any abbreviation thereof), unless otherwise approved in writing, in the originating email address line or subject line of any email transmission.
(h) Subject lines, when taken word by word and as a whole, may not be false or likely to mislead a reasonable recipient as to the contents or subject matter of the message. When directed, Publisher may only use, without alteration, approved subject lines provided by Envyus.
(i) Email containing advertisements or solicitations must identify itself as such and do so by clear and conspicuous means.
(j) Email shall identify the appropriate sender and include the company name, email and physical or postal mailing address, all in a clear and conspicuous text and font size.
(k) Each email must clearly explain that the recipient may opt-out of receiving future email. Opt-out explanations and links must be displayed in a clear and conspicuous font size and color. Publisher must not require an e-mail recipient to pay a fee, provide information other than his or her e-mail address, and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single website to opt out of receiving future e-mail. The unsubscribe link must be fully functional for the duration of the Email Campaign and for a minimum of thirty (30) days after the last email in the Email Campaign is delivered.
(l) Once an opt-out request is received, Publisher must add the email address to its suppression list and stop sending email to the requestor's email address within ten (10) business days.
(m) Publisher may not sell, transfer or otherwise provide opted-out email addresses to third parties, whether for continued emailing as part of the Email Campaign or any other purpose other than updating email suppression files.
(v) Banners. Publisher shall not modify banner Creative or utilize any banner that is not available by Envyus. Publisher may submit banners to Envyus for review, approval and inclusion by Envyus for Publisher's use by submitting them to Envyus.
4. AD REQUIREMENTS
4.1 Compliance with Industry Standards.
Publisher agrees to undertake and complete the services as specified by Envyus, including all Ad placement restrictions or channels specified, in accordance with the highest industry standards. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other merchants included in the website or email.
4.2 No Modifications to Ads, Envyus Code or Network IP.
Except as expressly permitted under this Agreement, Publisher shall not alter, copy, modify, take, sell, re-use, or divulge in any manner of any Ad, Envyus Code or Network IP provided by Envyus without Envyus' prior written consent. Publisher may not copy Envyus' Ads and display them from Publisher's website directly, redirect traffic to a website other than that listed by Envyus and/or the Advertiser, or ask Users to take advantage of Ads or offers other than those listed by Envyus and/or the applicable Advertiser.
Publisher shall be solely responsible for placing Ads on the Publisher Media, which placement shall be subject to the terms and conditions of this Agreement. Publisher also is responsible for full delivery of valid data in the requested format as specified by an Envyus representative.
4.4 Flight Dates and Unit Caps.
When an Advertiser has set specific Flight Dates for an Ad and/or capped the Units it is purchasing, Publisher shall not place Ads after either limitation is met. Publisher also shall not run an Ad after Envyus has posted new Creative to run in lieu of such Ad. Envyus reserves the right to pay Publisher only for Units delivered using the proper Creative and/or within the Flight Dates or Unit limitations. PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF ADS IT HAS PLACED WITHIN ITS MEDIA ON A REGULAR AND TIMELY BASIS. IT IS THE PUBLISHER'S SOLE RESPONSIBILITY TO CHANGE ADS WITHIN ITS MEDIA WHEN AN AD IS NO LONGER AVAILABLE IN THE ENVYUS NETWORK OR HAS NO UNITS REMAINING FOR DELIVERY.
Upon payment, Envyus shall have no further obligation to Publisher. Envyus and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the person(s) and or data represented in the Unit, without further obligation to Publisher.
Envyus will not compensate Publisher for Units or data that have been received and rejected by an Advertiser for any reason, including but not limited to duplicates, invalid data, incomplete data, data of low quality, or fraudulent data. Envyus will not compensate Publisher for Units or data that have been determined by Envyus, in its sole discretion, to be subject to rejection for any reason, including but not limited to duplicates, invalid data, incomplete data, data of low quality, or fraudulent data. In the event that Publisher has already received payment for such Units or data, Envyus reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher. Publisher and Envyus acknowledge that any Units or data rejected may be retained and marketed by the Advertiser and/or Envyus, to the extent possible.
Publisher shall not generate Clicks, Impressions, leads, or acquisitions by: (i) auto spawning browsers, automatically redirecting Users, or any other technique of generating "automated" Click-Throughs; (ii) falsely generating User data; (iii) posting User data that is older than 48 hours; (iv) requiring Users to click on an Ad before entering any area of a Website; or (v) Prohibited Conduct.
4.8 Click Throughs.
All Click-Throughs must: (i) go through Envyus' unique gateway; and (ii) be recorded by Envyus' server.
5. RIGHT TO AUDIT
Publisher agrees that at all times during the term of this Agreement and for one (1) year thereafter, it shall maintain accurate books and records relating to its performance under this Agreement, including books and records relating to its Sub-Publishers. Publisher agrees that Envyus, or any designee of Envyus, shall have the right, once per each six (6) month period, at Envyus' sole cost and expense, to examine, inspect, audit, review and copy (an "Audit") or make extracts from all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Publisher at least five (5) business days prior to the commencement of an Audit.
At the agreed upon pay-out price and provided that Publisher complies with all provisions of this Agreement, Envyus hereby grants to Publisher a nonexclusive, nontransferable, limited, revocable license to use, execute and display the Network IP solely for the purpose of performing its obligations under this Agreement and subject to the terms of this Agreement. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as Envyus granting Publisher any right, title or interest in Network IP. Publisher acknowledges and agrees that Envyus and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world. Publisher's use of the Network IP or the results created thereby, or its dissemination or distribution of this information except as expressly permitted by this Agreement is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law.
7. INTELLECTUAL PROPERTY
Subject to the limited licenses granted to Envyus and Publisher hereunder, each party shall own and retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, testimonials, endorsements, know how, and proprietary technology, including without limitation those trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, testimonials, endorsements, know how, and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works, or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.
8. DATA OWNERSHIP
Publisher understands and agrees that all data, including but not limited to personally identifiable information provided by Users in response to an Ad and any and all reports, results, and/or information created, compiled, analyzed, or derived by Envyus from such data is the sole and exclusive property of Advertiser and/or Envyus and is considered Confidential Information pursuant to this Agreement. Envyus and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the Users and/or data without further obligation to Publisher. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third party.
9. REPRESENTATIONS AND WARRANTIES
9.1 Publisher Responsibility.
The parties hereby acknowledge that Publisher is solely responsible for the method of dissemination of the Ads, and that Envyus will not have any control over the method of dissemination and is relying entirely on these representations and warranties made by Publisher.
9.2 Publisher Warranties.
9.3 Mutual Warranties.
Each party represents and warrants to the other that: (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, or decree to which such party is bound; and (iii) such party acknowledges that the other party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
10.1 Payment Rate.
Envyus reserves the right to set campaign rates, which may vary with market conditions. Publishers will be paid as set forth in the applicable program terms. All accounts will be settled in U.S. dollars. No check will be issued for any amount less than $25. All unpaid earnings will rollover to the next pay period. Any Publisher account that goes unpaid for six months becomes subject to immediate payoff and dismissal from the Envyus Network. As a condition to Envyus' obligation to make payments hereunder to Publisher, Publisher must have on file with Envyus a completed and accurate W-9 (for US-based Publishers) or a completed and accurate W-8 (for non-US-based Publishers). Publisher payments will be withheld until the appropriate taxation documents are received by Envyus. If the required tax documents are not on file with Envyus within three (3) months of the date of a scheduled payment, Envyus may charge a monthly administrative fee, representing Envyus' cost of establishing and maintaining Publisher's account, equal to 25% of the original balance. Envyus reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein. Envyus will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement.
10.2 Breach or Fraud.
Envyus actively monitors traffic, actions, commissions, and other program-related activities for potential fraud. If Envyus, in its sole discretion, suspects or determines that your account has been used in a fraudulent manner, your account will be deactivated effective immediately, with no notice to you, and you will forfeit all unpaid commissions, pending further investigation. Envyus reserves sole judgment in determining fraud and you agree to be bound by any and all such determinations. It is the obligation and burden of Publisher to prove to Envyus that it has not engaged in fraud. Envyus will hold your commission-related payments until you have satisfactorily provided evidence that demonstrates to Envyus that you have not engaged in fraud. If you are unable to provide Envyus with satisfactory evidence that you have not engaged in fraud within five (5) business days of your commissions being so held by Envyus, then Envyus reserves the right to terminate your Publisher account and cancel payment on all unpaid commissions, at its sole discretion and without any further obligations to you. Thus, if, in Envyus' opinion, Publisher violates this Agreement, refuses to fulfill its responsibilities or commits fraudulent activity, Publisher shall forfeit all unpaid commissions and Envyus reserves the right to take appropriate legal action.
10.3 Compensation and Payment Terms.
You understand and agree payment for the applicable verified commissions will be distributed approximately fifteen (15) days after the last day of a given calendar month, for commissions realized in that month. Commissions will be payable only for offers published by You in accordance with specific program terms, and only after the commissions have been earned. Commissions will not be "earned" until Envyus receives payment from the Envyus Customer. It is Publisher's responsibility to advise Envyus immediately of any change in any of the information furnished by Publisher as part of Publisher's application. Publisher agrees that payment for commissions will be owed to Publisher from the applicable Envyus Customer, and that corresponding payments shall be made by Envyus to You out of the funds actually collected by Envyus from the applicable Envyus Customer. Envyus shall have no payment obligation to Publisher where the Envyus Customer has not remitted sufficient payments to cover the commissions otherwise due and owing Publisher. Instead, Publisher shall have the right to pursue any and all legal remedies directly against any Envyus Customer that has not made funds available to pay sums due and owing to Publisher for commissions earned in connection with a particular program. All Publisher accounts will be paid in U.S. dollars. Every Publisher account must have a unique, valid taxpayer identification number, valid Social Security Number or other applicable unique government identification. All payments due hereunder are exclusive of any applicable taxes. Publisher shall be responsible for all applicable taxes. Envyus may elect to advance to Publisher commissions prior to those commissions having been earned. You acknowledge and agree that Publisher's receipt of commission payments prior to those payments having been earned is conditional and subject to Envyus' right to demand return of unearned commissions for any reason or for no reason at all.
Calculation of Publisher earnings shall be in Envyus' sole discretion, the exercise of which shall include, without limitation, an assessment of the quality of Publisher's traffic. In the event Publisher disagrees with any such calculation, Publisher shall, within seven (7) calendar days of receipt of such calculation, send a written request to Envyus detailing, with specificity, Publisher's concerns. Thereafter, Envyus will provide Publisher with an explanation or, if such calculation is determined by Envyus to be incorrect, an adjustment. In all cases, Envyus' calculations shall be final and binding.
Publisher is solely responsible for any legal liability arising out of or relating to: (i) Publisher's website(s); (ii) any material to which Users can link through Publisher's website(s); and (iii) any consumer and/or governmental/regulatory complaint arising out of any campaign conducted by Publisher, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. Publisher shall indemnify, defend and hold harmless Envyus and its officers, directors, shareholders, employees, agents, representatives, affiliates, and Advertisers (collectively "Envyus Parties") from and against any and all allegations, claims, actions, causes of action, lawsuits, inquiries, investigations, damages, 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") incurred by, or imposed or asserted against, the Envyus Parties which, if true, would constitute or relate to any claims, suits or proceedings for (a) libel, defamation, violation of rights of privacy or publicity, fraud, false advertising, misrepresentation, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with Publisher's website(s) and/or Publisher's performance under this Agreement; (b) any breach by Publisher of any obligation, duty, representation, or warranty under this Agreement; (c) any breach by Envyus of any obligation, duty, representation, or warranty to provide Ads for placement on Publisher's website(s) due to any breach by Publisher of this Agreement; (d) a contaminated file, virus, worm, or Trojan horse originating from Publisher's website(s); or (e) gross negligence or willful misconduct by Publisher.
12. LIMITATIONS OF LIABILITY & WARRANTIES
12.1 Disclaimer of Warranties.
ALL SERVICES PROVIDED BY ENVYUS ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ENVYUS MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. ENVYUS IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
12.2 Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL ENVYUS BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF ENVYUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL ENVYUS' TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE AMOUNT PAID TO PUBLISHER FOR THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSDAND DOLLARS ($10,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ENVYUS MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
PUBLISHER ACKNOWLEDGES THAT ENVYUS HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.
13. TERM & TERMINATION
This Agreement, as may be amended, applies to Publisher for as long as Publisher distributes Ads for Envyus and may not be replaced or superseded by an agreement presented by Publisher. Envyus reserves the right to terminate this Agreement and remove any Publisher from the Envyus Network at any time, with or without cause.
Upon termination, Publisher agrees to immediately remove from its website(s) any and all Network IP. Publisher will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, earnings due up to the time of termination.
Publisher acknowledges that Envyus may provide Publisher with information that is confidential and proprietary to Envyus or a third party, as is designated by Envyus or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"), including but not limited to Envyus' campaign rates, Envyus Code and Network IP. Publisher may use Confidential Information received from Envyus only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. Publisher agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of Envyus. Upon termination of this Agreement, or upon written request by Envyus, Publisher shall destroy or return to Envyus any Confidential Information provided by Envyus under this Agreement. Publisher further agrees that if Publisher breaches this confidentiality provision, Envyus will be irreparably harmed as a matter of law and will be entitled to immediate injunctive relief and its reasonable attorneys' fees incurred in enforcing this provision. The obligations of confidentiality in this provision shall not be affected by the termination of this Agreement.
Publisher agrees to refrain from any disparagement, defamation, libel, or slander, or interference, tortious or otherwise, with the contracts and relationships of Envyus, as well as its officers, directors and employees. Publisher further agrees that if Publisher breaches this non-disparagement provision, Envyus will be irreparably harmed as a matter of law and will be entitled to immediate injunctive relief and its reasonable attorneys' fees incurred in enforcing this provision. The obligations of this provision shall not be affected by the termination of this Agreement.
16. CHOICE OF LAW, JURISDICTION & VENUE
This Agreement is governed by the laws of the State of Kansas, regardless of its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Sedgwick County, Kansas. The parties consent to such venue and jurisdiction and agree to waive the personal service of any process upon them by agreeing that service may be effectuated by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the last address provided by Publisher.
17. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the parties and there have been no agreements, promises, representations, warranties, or undertakings by either of the parties, either verbal or written, except as stated in this Agreement. Envyus shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement. Publisher's continued use of the Envyus Network after the effective date of such change shall be deemed Publisher's acceptance of the revised Agreement.
No change, modification or amendment of any provision of this Agreement by Publisher will be valid unless set forth in a written instrument signed by both parties with the corporate authority to do so.
Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for Envyus, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: Envyus Media, PO Box 781352, Wichita KS 67278 (effective upon actual receipt); and (ii) for Publisher, at the email address listed on Publisher's account (effective upon sending) or via registered mail, return receipt requested or via an internationally recognized express mail carrier to the physical address listed on Publisher's account (effective upon actual receipt).
No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of Envyus. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. Envyus and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties under this Agreement, to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
21. INDEPENDENT CONTRACTOR
Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party's prior written consent.
22. FORCE MAJEURE
Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
23. SURVIVAL & SEVERABILITY
Any obligations which expressly or by their nature are to continue after termination, cancellation or expiration of this Agreement shall survive and remain in effect after such happening. Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of this Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement, then: (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
24. REMEDIES & WAIVER
Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies that the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect the first party's right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.