PUBLISHER TERMS & CONDITIONS
THESE PUBLISHER TERMS AND CONDITIONS (the "Agreement"), together with the E-Mail Policy, the Search Marketing Policy, the Downloadable Software Policy, the Privacy Policy, and the Website Terms of Use constitute a legally binding agreement between MarketLeverage, LLC ("MarketLeverage") and you (interchangeably, "Publisher", "Affiliate", "You" or "Your"), the user of the MarketLeverage Network (as defined below). You and MarketLeverage may also be individually referred to herein as "party" and collectively as "parties." This Agreement sets forth the terms and conditions that shall govern Your use of the MarketLeverage Network. You agree that you shall not use the MarketLeverage Network other than in accordance with this Agreement. If You do not agree to the terms and conditions contained herein, You may not use the MarketLeverage Network for any reason or in any manner. MarketLeverage reserves the right to make changes to the MarketLeverage Network and the terms and conditions of this Agreement at any time. Your continued use of the MarketLeverage Network after any such modification shall constitute Your explicit consent to such modification.
1. Description of the MarketLeverage Network; Participation Requirements.
1.1.Description of the MarketLeverage Network. MarketLeverage shall provide the service (the "Service"), which shall include, without limitation, placing offers of advertising programs and associated creative of the advertisers and/or merchants (the "Advertisers") on the MarketLeverage Site ("Program(s)"), the web-based application, and reporting. The Programs shall set forth the creative, the amount and terms under which You may be entitled to payment ("Bounty"), and the terms and conditions (if any). A Bounty is generated from a specified event ("Event") identified in the applicable Program, such as clicks, click-throughs, sales, registrations, impressions or leads. "Site" or "MarketLeverage Site" shall mean the website through which the Service is accessed. "MarketLeverage Network" shall mean, collectively, the Service and the MarketLeverage Site.
1.2. Participation in the MarketLeverage Network. You may only participate in the MarketLeverage Network if You agree to be bound by the terms and conditions of this Agreement, and You receive MarketLeverage's explicit approval, as described in Section 1.4 below. MarketLeverage's approval of Your participation in the MarketLeverage Network may be withheld or terminated at any time, in MarketLeverage's sole discretion, with or without cause, regardless of whether MarketLeverage initially grants approval of Your participation.
1.3. Publisher Criteria. In order for Publisher to be accepted as a participant in the MarketLeverage Network, the Publisher website(s) and those of its partners ("Publisher Website(s)"): (a) may not consist solely of a list of links or advertisements, or consist solely of an advertisement from a Program, (b) must be written in English and contain only English language content, (c) may not be a third party's website, (d) must be fully functional at all levels, and not contain any "under construction" sections, and/or (e) may not include spawning process pop-ups or cause more than one pop-up window to appear.
1.4. Participation Approval Process. Prior to participation in the MarketLeverage Network, Publisher shall complete a Publisher Network Application ("Application"). If MarketLeverage determines to accept such Application, MarketLeverage shall send an e-mail to Publisher clearly communicating MarketLeverage's acceptance ("Acceptance E-mail"). Publisher shall only be entitled to participate in the MarketLeverage Network upon receipt of an Acceptance E-mail.
2. License.
Subject to the terms and conditions of this Agreement and MarketLeverage's issuance of an Acceptance E-mail to Publisher, MarketLeverage grants Publisher a revocable, non-transferable, non-exclusive limited license to use the MarketLeverage Network and any data, reports, information or analyses arising out of such use ("Site Data") solely for the purposes set forth in this Agreement. Publisher may only access the MarketLeverage Site via web browser, unless otherwise approved by MarketLeverage in writing. Publisher may not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the MarketLeverage Site or any tags, source codes, links, pixels, modules or other data provided by or obtained from MarketLeverage that allows MarketLeverage to measure advertising performance and provide the Service. Any alternation of integration tags may impact Publisher's ability to be paid for Events, or to otherwise receive Bounties. Publisher may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the MarketLeverage Site, any content therein, or any portion thereof.
3. Use of MarketLeverage Network.
3.1. Program Terms. MarketLeverage shall be responsible for displaying and administering all active Programs. MarketLeverage may change a Program, including, without limitation, the creative materials or the Bounty, at any time in its sole discretion. Any such change shall be deemed effective upon posting on the MarketLeverage Site. MarketLeverage may also display terms and conditions of a particular Program or an additional agreement from the respective Advertiser. Publisher acknowledges and agrees that MarketLeverage does not approve, endorse, or agree with any of the content or links in the Programs. The existence or availability of a Program in no way constitutes the endorsement or approval of MarketLeverage.
3.2. Publisher's Acceptance of a Program. Publisher agrees that it will, at all times, utilize Programs and any Program related materials (including but not limited to Suppression Lists (as defined in Section 6)) at its own risk. Publisher acknowledges and agrees that upon accepting an offer for a Program, it shall be in compliance with the terms and conditions of the Program (if any), the terms and conditions of the additional Advertiser agreement (if any), and the terms and conditions contained herein, including, for the avoidance of doubt, the representations and warranties set forth in Section 9. In addition, Publisher acknowledges that, prior to Publisher's acceptance of an offer for a Program, a specific Advertiser's agreement may be displayed to Publisher, and Publisher shall be required to accept the terms of that Advertiser's agreement in order to accept that Advertiser's particular Program, and Publisher shall thereby be bound to such Advertiser's terms and conditions. Failure by Publisher to adhere to the requirements set forth in this Section 3.2, in addition to all other remedies available to MarketLeverage, may result in immediate termination of this Agreement by MarketLeverage and withholding of a Bounty or any payment to Publisher, without penalty to MarketLeverage.
3.3. Bounty. MarketLeverage shall be solely responsible for calculating Your Bounty, and MarketLeverage's calculations shall be final and binding. Any questions regarding Your Bounty must be submitted in writing within three (3) calendar days of Your receipt of such Bounty, or the Bounty will be deemed accurate and accepted by You.
3.4. Third Party Publishers. Publisher hereby acknowledges and agrees that to the extent it represents or acts on the behalf of third party publishers and/or affiliates ("Third Party Publishers"), Publisher assumes all liability for the Third Party Publishers and will ensure that Third Party Publishers comply with the terms of this Agreement and all applicable laws and regulations. For the purposes of this Agreement, "Publisher" shall mean the Publisher and any Third Party Publishers.
4. Prohibited Conduct.
4.1 Fraudulent Activity. You may not engage in any fraudulent activity ("Fraudulent Activity") in connection with the promotion of any Programs. Fraudulent Activity shall include, without limitation: (a) having click-through rates that are higher than industry averages and where solid justification for such click-through rates is not evident to the reasonable satisfaction of MarketLeverage, (b) generating clicks to click-only Programs with no indication of site traffic, (c) having leads or clicks generated through fraudulent traffic generation, such as prepopulation of forms or other fraudulent means as determined by MarketLeverage, (d) having much higher click to conversion rates than industry averages and where solid justification for such higher rates is not evident to the reasonable satisfaction of MarketLeverage, or (e) using fake redirects, automated software, and/or fraud to generate Events. MarketLeverage shall be the sole arbitrator of what constitutes Fraudulent Activity.
4.2 Prohibited Content. The content of the Publisher Website(s) incorporating any Program(s) may not promote, advocate, facilitate or otherwise include any of the following ("Prohibited Content"):
(h) Promotion of illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money, etc.);
(i) Material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation;
(n) 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;
(o) 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"), programs that instigate the spread of viruses, 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;
(p) 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;
(s) Any material that otherwise infringes upon the rights of any third parties including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy, violation of any anti-discriminatory law or regulation, or any other right of any person or entity;
(t) Gambling, contests, lotteries, raffles, or sweepstakes;
(u) Any material that violates the CAN-SPAM Act of 2003, as amended ("CAN-SPAM"), the Federal Trade Commission Act, as amended ("FTC Act"), or the Children's Online Privacy Protection Act ("COPPA"); or
4.3. Prohibited Conduct. If Publisher engages in any Fraudulent Activity and/or uses any Prohibited Content (collectively, "Prohibited Conduct"), as determined by MarketLeverage in its sole discretion, Publisher will forfeit its entire Bounty for all Programs, and this Agreement and all of Publisher's rights hereunder shall immediately terminate. Furthermore, to the extent that Publisher's Prohibited Conduct damages MarketLeverage's relationship with an Advertiser, the parties agree that Publisher will be liable to MarketLeverage for consequential and special damages, including, without limitation, lost profits. If Publisher is notified that Prohibited Conduct may be occurring, and Publisher fails to take prompt action to stop such Prohibited Conduct, then, in addition to any other remedies available to MarketLeverage, Publisher shall be responsible for all costs and legal fees arising from such Prohibited Conduct.
4.4. Prohibited Conduct by Third Party Publishers. Upon notice by MarketLeverage that a Third Party Publisher is engaging, or has engaged, in Prohibited Conduct, including but not limited to fraudulent traffic generation, Publisher agrees to terminate its relationship with such Third Party Publisher, as it pertains to the Third Party Publisher's participation in the MarketLeverage Network. If Publisher is notified that a Third Party Publisher is engaging, or has engaged, in Prohibited Conduct, and Publisher fails to terminate its relationship with such Third Party Publisher within four (4) hours of notice by MarketLeverage, MarketLeverage reserves the right to immediately terminate this Agreement and revoke the Bounty otherwise due to Publisher, in addition to all other remedies available to MarketLeverage. Further, in the event that MarketLeverage determines, in its sole discretion, that a Third Party Publisher is engaging, or has engaged, in Prohibited Conduct, MarketLeverage shall recalculate and withhold the Publisher's Bounty accordingly. For the avoidance of doubt, MarketLeverage reserves the right to withhold or recalculate amounts generated by Prohibited Conduct of Third Party Publishers, regardless of whether Publisher participated in or knew about the Prohibited Conduct.
4.5 Monitoring. Publisher acknowledges and agrees that MarketLeverage may use any means of monitoring Publisher's activities in connection with the Programs, including, without limitation, through the use of seed e-mail accounts, third party monitoring services, proprietary monitoring systems, and through monitoring Publisher's promotional activities.
4.6. Litigation and Investigation. To the extent that Publisher becomes aware of any litigation or investigation concerning Publisher's e-mail or other Internet practices or procedures, Publisher will immediately notify MarketLeverage (irrespective of whether such litigation relates to Publisher's relationship with MarketLeverage).
5. Suppression Lists.
To the extent that MarketLeverage provides an opt-out or unsubscribe list ("Suppression List") via the MarketLeverage Site in connection with a Program, Publisher shall scrub its database against the most recent Suppression List prior to promoting the Program, such that the e-mail addresses that appear in the Suppression List are removed from the list of prospective recipients. Publisher shall not at any time send any e-mails to a Suppression List. MarketLeverage will transmit or display an updated Suppression List for each Program that involves e-mail marketing on the MarketLeverage Site no less than once every ten (10) days. Publisher will not use the Suppression List in any manner other than for the purpose set forth in this Section 5. Failure to adhere to this requirement may, in addition to all other remedies available to MarketLeverage, result in immediate termination of this Agreement and a revocation of the Bounty otherwise due to Publisher, without penalty to MarketLeverage. Publisher shall not obtain any ownership interest or rights in and to any Suppression List.
6. Confidential Information.
When used in this Agreement, the term "Confidential Information" shall mean the terms of this Agreement and all proprietary information, data, trade secrets, and business information, including but not limited to the identities of the Advertisers, the Program rates for Events, and other information of any kind whatsoever, which a party discloses ("disclosing party"), in writing, orally or visually, to the other party ("receiving party"), or to which the receiving party has access, in connection with discussions, negotiations and performance between and by the parties. The receiving party agrees to use the disclosing party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the disclosing party's Confidential Information to any third party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties, (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure, or (c) any disclosure is made with the written consent of the disclosing party.
7. Payment Terms.
MarketLeverage will pay Publisher in connection with the occurrence of any completed Event. Unless otherwise stated in the Program terms and conditions, Payment shall be made to Publisher approximately fifteen (15) days from the end of the calendar month in which a completed Event occurred, less any returns and charge backs, and pursuant solely to MarketLeverage's calculations and reports. All payments to Publisher by MarketLeverage are contingent upon MarketLeverage receiving payment from the Advertisers. In the event MarketLeverage fails to receive payment from an Advertiser, MarketLeverage shall have no payment obligation to Publisher with respect to that Advertiser and Publisher will have the right to contact the non-paying Advertiser directly. Publisher accepts all risks associated with non-payment by an Advertiser and acknowledges that MarketLeverage is not a guarantor of any Advertiser payment obligation. If an Advertiser does not pay on time, MarketLeverage will notify Publisher and may, in its sole discretion, offer its reasonable assistance in matters related to collections. MarketLeverage will not pay for any Events that occur before a Program is initiated, or after a Program terminates. MarketLeverage will not be obligated to pay any interest or late payment fees in connection with Bounties or other payments held or withheld by MarketLeverage. MarketLeverage is not liable for Events that are not recorded due to Publisher's error. All accounts will be paid in US dollars ($US). For Publishers located in the United States and Canada, if the compensation owed to Publisher for any one month period is less than twenty-five dollars ($25), MarketLeverage will withhold payment until the total amount due is at least twenty-five dollars ($25), or, if earlier, until this Agreement is terminated. For Publishers located in all other countries, if the compensation owed to Publisher for any one month period is less than one hundred dollars ($100), MarketLeverage will withhold payment until the total amount due is at least one hundred dollars ($100) or, if earlier, until this Agreement is terminated. Every Publisher account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number. If Publisher has an outstanding balance due to MarketLeverage or its related business entities (including, without limitation, its parents, sisters or subsidiaries) under this Agreement or any other agreement, Publisher agrees that MarketLeverage may offset such outstanding balance from amounts payable to Publisher by MarketLeverage pursuant to this Agreement. If, in MarketLeverage's sole discretion, Publisher is deemed to have violated the terms of this Agreement or any of the policies referenced herein, then MarketLeverage may, in addition to all other remedies available to MarketLeverage, revoke the Bounty otherwise due Publisher, without liability to MarketLeverage. MarketLeverage may also apply a debit to Your Bounty at any time (including future payment cycles) or seek a refund for a Bounty otherwise paid to You for any completed Events if MarketLeverage does not receive payment from the Advertiser or if, in MarketLeverage's sole and absolute discretion, the Event(s) were completed in violation of the terms of this Agreement or any of the policies referenced herein.
8. Term and Termination.
8.1. Term. This Agreement shall begin upon MarketLeverage's delivery of an Acceptance E-Mail to Publisher and remain in effect for an initial term of one (1) year ("Initial Term"), unless otherwise terminated pursuant to the terms contained herein. The Initial Term shall be automatically renewed for successive one (1) year terms (each a "Renewal Term," together with the Initial Term, the "Term").
8.2. Termination. In addition to any other termination rights contained herein, either party may terminate this Agreement upon three (3) business days prior written notice to the other party, for any reason or no reason. This Agreement may be terminated at any time by a party, effective immediately upon written notice, if the other party (a) files a voluntary petition in bankruptcy, (b) makes an assignment for the benefit of its creditors, or (c) breaches any of the material terms of this Agreement or the any of the other policies referenced herein. Following the applicable notice periods, if any, termination pursuant to this Section 8.2 shall be automatic, and shall not require any action by either party. In addition, MarketLeverage reserves the right, in its sole and absolute discretion, to terminate a Program or Publisher's participation in a Program at any time for any reason. MarketLeverage also reserves the right to terminate Publisher's access to the MarketLeverage Site at any time, with or without notice to Publisher, for any reason. Upon termination, all legitimate moneys due to Publisher that are actually collected from the applicable Advertiser (including amounts below the payment threshold) will be paid during the next billing cycle. Upon termination of this Agreement for any reason, any and all licenses and rights granted to Publisher in connection with this Agreement shall immediately cease and terminate. Further, Publisher acknowledges and agrees that if instructed to do so by MarketLeverage and/or if this Agreement terminates, Publisher will (a) immediately discontinue the use of the MarketLeverage Network, (b) immediately cease to use and remove from the Publisher Websites any and all advertisements and/or related materials made available to Publisher in connection with Publisher's participation in the MarketLeverage Network, and (c) immediately cease transmitting any and all e-mails in connection with any Program.
9. Representations and Warranties; Indemnification.
9.1. Publisher Representations and Warranties. Publisher represents and warrants that:
(a) Your execution, delivery and performance of this Agreement will not conflict with or violate: (i) any provision of law, rule or regulation to which You are subject; (ii) any order, judgment or decree applicable to You; (iii) any provision of Your corporate by-laws or certificate of incorporation, if applicable; or (iv) any agreement or other instrument applicable to You;
(b) You will not use third-party trademarks in any way to direct traffic to any Publisher Websites or Advertiser websites including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name, of any of Company, any Advertiser and/or any of their respective affiliates or clients;
(e) the Publisher Websites and the content contained on the Publisher Websites will not infringe or violate the patents, copyrights, trademarks, rights of publicity, defamation, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;
(i) Publisher will comply with all local, state and federal laws and regulations, including, but not limited to, CAN-SPAM, COPPA, the FTC Act, and the Utah and Michigan "Child Protection Registry" laws;
(j) Publisher will not transmit any e-mail: (i) with materially false or misleading header information; (ii) with a "from line" that is materially false or misleading and does not accurately identify a person initiating the e-mail; (iii) with a subject line that is misleading, false or misrepresentative or is likely to mislead the recipient about the content or subject matter of the e-mail; (iv) that does not include a clear and conspicuous identification that the e-mail is an advertisement or solicitation, (v) that does not contain a clear and conspicuous notice of the opportunity to decline to receive further communications, (vi) that does not contain a valid physical postal address of the Advertiser and Publisher, and (vii) that does not contain a functioning return e-mail or other Internet-based mechanism, that (A) a recipient may use to submit a reply e-mail or other form of Internet-based communication requesting not to receive future commercial e-mails from Publisher and Advertiser, and (B) remains capable of receiving such messages or communications for no less than thirty (30) days after the e-mail was sent; or (viii) with any content that (A) infringes or violates any intellectual, proprietary or privacy rights, or (B) is Prohibited Content;
(k) Publisher will not transmit a commercial e-mail (i) if Publisher knows, or has reason to know, that the e-mail address was obtained using an automated means, including without limitation, harvesting software, such as harvesting bots or harvesters, dictionary attacks, etc., or an Internet service which indicated that at the time the address was obtained the service was not to give or sell the address to others; or (ii) to any individual that has requested not to receive any e-mails from You more than ten (10) days after receipt of such request, unless the recipient subsequently requests that such e-mail communication be initiated again;
(m) Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from MarketLeverage that allows MarketLeverage to measure ad performance and provide the Service;
(n) You may not advertise or otherwise promote any Program via a third party website's internal communication system, including, without limitation, internal website e-mail (e.g. Myspace.com or Facebook.com e-mail), bulletin boards (e.g., Craigslist.org), chat rooms, or comments;
(q) There is no pending or, to the best of Your knowledge, threatened claim, action or proceeding against You;
(r) Upon accepting an offer for a Program, You will comply with any and all additional terms and conditions of such Program that are not otherwise in this Agreement.
Failure to adhere to the foregoing representations and warranties may, in addition to all other remedies available to MarketLeverage, result in immediate termination of this Agreement pursuant to Section 10.2 and a revocation of the Bounty otherwise due to Publisher, without penalty to MarketLeverage.
Further, Publisher acknowledges and agrees that:
(b) if any errors or undesirable results occur to Publisher or a third party that do not result from the willful misconduct of MarketLeverage, gross neglect of MarketLeverage, or breach of this Agreement by MarketLeverage, then MarketLeverage shall not be responsible for any losses or damages Publisher may incur and Publisher shall not be entitled to compensation for such losses or to the payment of damages by MarketLeverage.
9.2. Indemnification. Publisher, on its own behalf and on behalf of its Third Party Publishers, will defend, indemnify, and hold harmless MarketLeverage, the Advertisers, and their respective affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) (collectively "Claims") arising from or related to: (a) any breach of Publisher's obligations under this Agreement and/or any Program terms and conditions, including the representations or warranties contained therein, (b) any claim that Publisher infringes upon any rights of any third party, (c) any allegation that Publisher or its partners or other agents violated any foreign or domestic, federal, state or local law or regulation, including but not limited to CAN-SPAM, (d) Publisher's improper or unauthorized use of the MarketLeverage Site or any Program, (e) any third party claim related to the Publisher Website, e-mails and/or marketing practices, (f) any content, goods or services offered, sold or otherwise made available by Publisher on or through the Publisher Website, e-mails or otherwise, or (g) a Third Party Publisher's breach of any obligations or warranties set forth herein. MarketLeverage reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Publisher hereunder. Publisher acknowledges that the Advertisers are intended third party beneficiaries of these indemnities. Publisher agrees that it will not assert a defense based upon lack of privity against any Advertiser seeking to enforce this Agreement.
10. Disclaimer of Warranty.
THE MARKETLEVERAGE SITE AND SERVICE IS PROVIDED ON AN "AS IS", "WHERE IS", AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND AND WITHOUT GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OF ANY ADVERTISEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MARKETLEVERAGE MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL MARKETLEVERAGE BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS OR LOST DATA (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTORY OR OTHERWISE ARISING FROM THIS AGREEMENT, THE MARKETLEVERAGE SITE, SERVICE OR ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. MARKETLEVERAGE SHALL NOT IN ANY EVENT BE LIABLE TO PUBLISHER FOR MORE THAN THE AMOUNT PAID BY MARKETLEVERAGE TO PUBLISHER HEREUNDER FOR THE THREE (3) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST MARKETLEVERAGE MORE THAN ONE (1) YEAR AFTER ACCRUAL OF THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY REMEDIES HEREUNDER AND APPLY REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Non-Solicitation.
Publisher recognizes that MarketLeverage has proprietary relationships with the Advertisers that participate in the MarketLeverage Network. Publisher agrees not to circumvent MarketLeverage's relationship with any such Advertiser, or otherwise solicit, induce, recruit or encourage, directly or indirectly, any Advertiser that is known by Publisher to participate in the MarketLeverage Network and/or otherwise have a business relationship with MarketLeverage for purposes of obtaining advertising, marketing or promotional services similar to those offered by MarketLeverage during the term of this Agreement and for the six (6) month period following termination or expiration of this Agreement. Notwithstanding the foregoing, to the extent that Publisher can show that any such Advertiser or third party already provided such services to Publisher prior to the effectiveness of this Agreement, then Publisher shall not be prohibited from continuing such relationship. Upon any breach of this Section 12 by Publisher, MarketLeverage will be entitled to damages in the amount of twenty-five percent (25%) of the gross revenues resulting from sales conducted by such Advertiser through the advertising or marketing efforts of Publisher.
13. Miscellaneous.
13.1. Entire Agreement. This Agreement, together with the E-Mail Policy, the Search Marketing Policy, the Downloadable Software Policy, the Privacy Policy and the Website Terms of Use, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties whether written or oral.
13.3. Notices. All notices to You shall be sent by certified mail, fax, e-mail or courier to the addresses submitted by You when signing up for the MarketLeverage Network, or at such different address as may be designated by You in writing. You shall send all notices to MarketLeverage to the contact information listed on the MarketLeverage Site. Notice will be effective upon receipt.
13.4. Governing Law; Jurisdiction and Venue. This Agreement shall be construed and governed by the law of the State of Florida, without regard to conflict of law principles. You expressly consent to the exclusive venue and personal jurisdiction of the state and federal courts located in Seminole County, Florida for any actions arising from or relating to this Agreement. Each party waives any objection or defense it may have now or hereafter that such courts constitute an inconvenient forum.
13.6. Independent Contractor. The parties to this Agreement are independent contractors. Neither party is an agent, representative, partner, employee, or joint venturer of the other party. Neither party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party.
13.8. Severability. In the event that any provision of the 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 (a) such provision will be restated to reflect as nearly as possible MarketLeverage's original intention in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
13.9. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
13.10. Survival. In the event of termination of this Agreement: Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 shall survive.
13.11. Attorneys' Fees. MarketLeverage shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, other professionals' fees, and other collections costs, and prejudgment interest at a rate of 1.5% per month or the maximum legal rate, whichever is less, in any action or proceeding arising out of or related to this Agreement resulting from the gross negligence or willful misconduct of You, or that results from Your breach of the Agreement.
Last Updated: 8/27/08
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