BENJAMIN I/O TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) will govern and are incorporated by reference into the Insertion Order(s) (“IO”) entered into by and between the Publisher and the Advertiser whose names appear on the IO and are effective as of the date set forth in the IO.
These Terms along with the IO(s) are referred to as the “Agreement.”
RECITALS
Publisher provides Internet-based advertising services including ad placements, customer acquisition, lead generation, marketing and/or other related advertising services on its owned and operated websites (“Publisher Websites”) and on third-party websites (where permitted in an IO). Advertiser wishes to engage Publisher to provide these services to Advertiser or its clients pursuant to one or more IOs. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, Publisher and Advertiser (the “Parties”) agree as follows:
1.DEFINITIONS
1.1 Capitalized terms used but not defined in these Terms shall have the same meanings as in the IO. For these purposes, an IO may include an exchange of confirmed emails between the parties and may be modified by an exchange of confirmed emails between the parties.
1.2 In addition, the following terms will have the meanings set forth below:
1.2.1 “Applicable Laws, Rules and Regulations” means all applicable federal, state and local laws, statutes, rules, regulations and policies relating to online and direct marketing, telemarketing, lead generation and advertising and other applicable privacy and data protection laws (“Data Privacy Laws”), as such acts, laws, rules, regulations and/or opinions may be amended, enacted, modified or supplemented during the
Term of this Agreement.
1.2.2 “Campaign” means a campaign to provide Services as specified in an IO, as such IO may be modified by the Parties from time to time.
1.2.3 “Clear(ly) and Conspicuous(ly)” means that a required disclosure is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers, including in all of the following ways: (i) A visual disclosure, by its size, contrast, location, the length of time it appears, and other characteristics, must stand out from any accompanying text or other visual elements so that it is easily noticed, read, and understood; and (ii) In any communication using an interactive electronic medium, such as the Internet or software, the disclosure must be unavoidable.
1.2.4 “Confidential Information” means any non-public or proprietary information provided by one party to the other during the term of this Agreement.
1.2.5 “Creative” means the advertisement and any components or elements thereof provided by Advertiser to Publisher.
1.2.6 “Lead” means self-reported data records provided by a consumer having the data specified in the IO who have submitted such data on the Publisher Websites.
1.2.7 “Person” means a natural person, an organization, or other legal entity, including a corporation, partnership, sole proprietorship, limited liability company, association, cooperative or any other group or combination acting as an entity.
1.2.8 “Services” shall mean the advertising, marketing, customer acquisition, lead generation and related services provided as specified herein and/or in an IO.
2. SERVICES
2.1 Publisher shall provide the Services specified in the IO to the Advertiser. Publisher may (i) drive media to Advertiser or Advertiser owned and/or controlled websites, (ii) display Creative on Publisher Websites, (iii) send emails on behalf of Advertisers, (iv) provide influencer services on social media platforms through its Infuse affiliate, (v) provide post-transaction ad modules served/displayed on purchase confirmation pages, (vi) provide syndicated ad module solutions served/displayed on mutually agreed upon partner media properties, (vii) deliver Leads, or (ix) provide such other Services as specified in an IO. If the Services contemplate the delivery of Leads to Advertiser, such Leads shall be delivered in the manner and format specified in the IO or, if no format is specified, in Excel (or Google Sheets) with comma delimited format or comma separated values.
2.2 Publisher will not materially edit or otherwise modify the Creative, or any component thereof, which has been supplied by Advertiser without Advertiser’s prior written consent, or as otherwise provided for in the IO. All material modifications to Advertiser-supplied Creatives must be approved by Advertiser prior to Publisher’s use.
2.4 The Publisher Websites do not contain and Publisher will not place any Creative on third-party websites that contain, promote, reference or have links to: (i) profanity, sexually explicit material, hate material, material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or family status, illegal activities or advice, or any other material, upon two (2) business days prior written notice, deemed by Advertiser to be unsuitable or harmful to Advertiser’s reputation; (ii) web pages with no content; (iii) piracy (of software, videos, audio/music, books, videogames, etc. hacking/cracking/phreaking, content unlockers, emulators/ROMs, or violations of the intellectual property or privacy rights of others; (iv) intentionally deceptive acts or practices; (v) personal web pages, non-English language pages, free hosted pages or websites under construction; (vi) charity clicks/donations, paid to surf, Active X downloads, all affiliate links or unrelated incentivized traffic where consumers have some sort of incentive to click on Creative; or (vii) activities generally understood as Internet abuse including the sending of unsolicited bulk electronic mail or the use of spyware.
2.5 Publisher shall source and develop, and Advertiser shall use the Services at all times in compliance with Applicable Laws, Rules and Regulations. All marketing services, solicitations, advertising copy, and any other communications with consumers as a result of this Agreement shall be conducted in a professional manner consistent with industry standards and in compliance with Applicable Laws, Rules and Regulations applicable to the intended activities contemplated hereunder.
5. PAYMENT:
5.1 Advertiser shall pay Publisher fees (the “Fees”) in an amount equal to and on the basis of (e.g., cost per Lead, cost per click, cost per action, revenue share, etc.) and on the payment terms specified in the IO or herein. Advertiser shall send monthly reports to Publisher or provide online access to a tracking platform that reports the user conversion rate, number of actions and Publisher’s Fees within ten (10) days following the last day of the calendar month in which applicable actions occur or revenue is collected (the “Service Period”). The parties will use commercially reasonable efforts to confirm the number of actions or revenue and
Fees owed as promptly as possible but no later than ten (10) days after numbers are available; if Advertiser does not confirm numbers within the 10-day period, Publisher reserves the right to immediately pause the Services. Publisher shall provide Advertiser with a monthly invoice for Fees owed for the Service Period promptly following the end thereof. Advertiser shall pay Publisher on the terms specified in the IO or thirty (30) days after the end of the Service Period, or if invoice has not been rendered by 30 days after the end of the Service Period, payment is due upon receipt of the invoice.
5.1.1 The Campaign terms specified in an IO including Start and End Dates, Daily and/or Monthly Caps, Conversion Point, cost per lead, click, action, rev share, etc., reactivation of a suspended or paused Campaign and other Campaign details, may be modified by Publisher and the Advertiser, in writing, after the execution of an IO.
5.1.2 Discrepancies identified and communicated by Advertiser after the close of each Service Period may result in a refund or credit memo issue after the Parties consult in good faith and reach an agreement in connection therewith. Any disputed amounts shall be maintained in an escrow account until such time as the parties agree.
5.2 The Fees owed to Publisher are net of any sales or use, excise or withholding taxes.
5.3 Advertiser shall maintain accurate books and records regarding the determination of revenue and payments due hereunder. Publisher shall have the right to audit such books and records at its own expense upon reasonable prior notice no more than once a year at Publisher’s offices. If an audit reveals an underpayment owed to Publisher, Advertiser shall pay such amount within fifteen 15 days.
5.4 For Campaigns which relate to a user earning credit towards qualifying for a reward on a Publisher Website such as signing up for a subscription service, installing an app or reaching a certain level on an installed app, Advertiser must report all such payable actions within one business day of the User completing such action.
5.5 Advertiser may not be obligated to pay for invalid or duplicate Leads (“Invalid Actions”), as recorded by Advertiser, which have been timely disputed as provided for in this Section 5.5. For purposes of the Agreement, an “Invalid Action” means:(a) a lead that is a computer-generated user, such as a robot, spider, computer script or other automated, artificial, or fraudulent method designed to appear like an individual, live person; (b) an individual person that has submitted information that fails to meet all of Advertiser’s material criteria as set forth in the applicable IO; or (c) a Duplicate. For purposes of the Agreement, a “Duplicate” means advertising traffic, submitted by Publisher to Advertiser, that reproduces all or substantially all of the uniquely identifying data of any traffic that was either previously submitted within the previous thirty (30) days to Advertiser by Publisher, and for which Advertiser has paid, or accrued an obligation to pay Publisher.
5.6. Advertiser shall send Publisher notice no more than thirty (30) days after the end of the month in which the Lead was delivered of any Leads that it is disputing. The dispute notice shall identify the Leads disputed including, date and time stamp, subID, IP address and the grounds that such Lead(s) is (are) being disputed. The parties shall use commercially reasonable efforts to resolve disputed Leads; disputed Leads which are determined to be invalid or duplicative, and for which Publisher is not paid, are referred to as “Scrubbed.” Except in cases involving latent fraud, a Lead which is not disputed on a timely basis, as provided for above, shall be presumptively deemed valid, and Advertiser shall be obligated to pay Publisher for such Lead, as provided for herein. Advertiser may not utilize any Scrubbed Lead for any purpose.
5.7 Undisputed payments not made on or prior to their applicable due date, as provided for in the IO, or as provided for in the invoice emailed to Advertiser, will bear interest at a rate of one percent (1%) per month (or the highest lawful rate, if less). Advertiser shall be responsible for all reasonable expenses (including attorneys’ fees and collection costs) incurred and/or arising out of or related to collecting undisputed amounts owed.
6. TERM AND TERMINATION; SUSPENSION
6.1 The initial term of this Agreement will commence when the first IO between the parties takes effect, and will continue until the expiration of the last to expire IO between the parties (“Initial Term”). Thereafter, this Agreement and applicable IOs will continue on a month-to-month basis for as long as Publisher is continuing to provide Services on any Campaign(s) governed by the IO(s), notwithstanding any end date that may be specified in the IO(s) (“Term”). Either party may terminate this Agreement and/or pause or terminate a Campaign governed by an IO, upon two (2) business days’ prior written notice to the other party. The parties understand and agree that if a Campaign governed by an IO is paused, the Term will not expire if the subject Campaign is reactivated within the ensuing six (6) month period.
6.2 If a party receives a third-party complaint or reasonably believes the other party’s actions, advertisements and/or business operations expose it to risk or damage to its business reputation, that party may suspend this Agreement immediately until such situation can be reasonably resolved. Upon receipt of a complaint, the party receiving the complaint shall provide a copy of the complaint to the other party, and the parties shall develop a mutually agreeable plan to respond.
6.3 Upon the expiration or termination of this Agreement, all licenses granted hereunder shall immediately terminate, and each party shall immediately cease using, promptly return, and purge its files of all material and any confidential information received from the other party, in connection with this Agreement. All terms and conditions of this Agreement that, by their sense and content, are intended to survive the expiration or termination of this Agreement, shall survive, regardless of the reason of such expiration or termination.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Publisher and Advertiser each represent, warrant and covenant to the other party that: (i) such party has the full corporate/company power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and except as may be limited by federal principles of equity; and (iii) it shall comply, and shall cause its marketing agents and third parties acting on its behalf to comply with Applicable Laws, Rules and Regulations.
7.2 Publisher represents, warrants and covenants to Advertiser:
7.2.1 That it will not knowingly provide any information to Advertiser, including Leads and related information, which were procured through fraud, identity theft or any illegal or illicit means, or in a manner not in compliance with Applicable Laws, Rules and Regulations including Data Privacy Laws and it will maintain all documents and records necessary to demonstrate compliance which will be provided upon request;
7.2.2 That it has established and implemented commercially reasonable practices and procedures designed to prevent the generation of Leads that do not comply with Applicable Laws, Rules and Regulations;
7.2.3 That it will not knowingly purchase or resell Leads that have originated from or have been generated by unsolicited commercial email, text messages or advertisements; and
7.3 Advertiser represents, warrants and covenants to Publisher:
7.3.1 That it holds the required intellectual property rights and/or licenses to permit the use, posting, reproduction, distribution, and transmission by Publisher, and its affiliates, of the Creatives, and by Advertiser, and its affiliates, of any landing pages and other materials to which consumers can link through to from the Creatives (“Linked Content”) and any products or services that are the subject of the Creatives or the Linked Content (“Advertiser Products”);
7.3.2 The Creatives, Linked Content and Advertiser Products, and the marketing thereof, do not violate any Applicable Laws, Rules and Regulations or the intellectual or other rights of any third parties in any way;
7.3.3 That all marketing efforts, solicitations, advertising copy, and any other communications with third parties, using Leads generated under this Agreement, shall be done in a professional manner and in compliance with Applicable Laws, Rules and Regulations;
7.3.4 The Creatives are not targeted to individuals under thirteen years of age, and do not offer products or services that are illegal for minors to buy, possess or use;
7.3.6 Advertiser will not load any computer program onto a consumer’s computer, in connection with a Campaign, except for CPI/CPE app install Campaigns and then only with the consumer’s express consent after receiving clear and conspicuous notice about the nature of the application to be downloaded; and
7.3.7 That the Advertiser’s operation of its business and/or any business advertised using the Leads complies with Applicable Laws, Rules and Regulations; And
8. THIRD PARTY AD SERVING AND TRACKING (when applicable)
8.1 Ad Serving and Tracking. Publisher will track delivery through its ad server and, provided that Publisher has approved in writing a Third Party Ad Server to run on its properties, Advertiser will track delivery through such Third Party Ad Server. Advertiser may not substitute the specified Third Party Ad Server without Publisher’s prior written consent.
8.2. Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows: i. Except as specified in (iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”). ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non-proprietary statistics to Publisher in an electronic form that is approved by Publisher; provided, however, that Publisher must receive access to such interface in the timeframe set forth in below. iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Publisher’s ad server, unless otherwise agreed by Advertiser and Publisher in writing.
8.3 Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified above, in the case of Ads being served by Publisher. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary.
8.4 Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Publisher and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Advertiser reserves the right to either: i. Consider the discrepancy an under-delivery of the Deliverables as described above, whereupon the parties will act in accordance with that Section, including the requirement that Advertiser and Publisher make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or (ii) Pay invoice based on Controlling Measurement-reported data, plus a ten percent (10%) upward adjustment to delivery.
8.5 Measurement Methodology. Publisher will make reasonable efforts to publish, and Advertiser will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
8.6 Third Party Ad Server Malfunction. Where Advertiser is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Advertiser will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Advertiser of a non-functioning Third Party Ad Server, Publisher will have twenty-four (24) hours to suspend delivery. Following that period, Advertiser will not be held liable for payment for any Ad that runs within the immediately following seventy-two (72) hour period until Publisher is notified that the Third Party Ad Server is able to serve Ads. After the seventy-two (72) period passes and Advertiser has not provided written notification that Publisher can resume delivery under the IO, Advertiser will pay for the Ads that would have run, or are run, after the seventy two (72) period but for the suspension, and can elect Publisher to serve Ads until the Third Party Ad Server is able to serve Ads. If Advertiser does not so elect for Publisher to serve the Ads until Third Party Ad Server is able to serve Ads, Publisher may use the inventory that would have been otherwise used for Publisher’s own advertisements or advertisements provided by a Third Party.
8.7 Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Publisher will have seventy-two (72) hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Publisher owing a makegood to Advertiser.
9. NO OTHER WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE LEADS, RELATED INFORMATION, PRODUCTS, SERVICES, AND/OR INFORMATION PROVIDED HEREUNDER. ADVERTISER UNDERSTANDS AND AGREES THAT THE LEADS AND RELATED INFORMATION, AND ANY OTHER INFORMATION PROVIDED HEREUNDER REPRESENTS SELF-REPORTED INFORMATION FROM INDIVIDUAL CONSUMERS, AND IS PROVIDED ON AN AS-IS BASIS.
PUBLISHER MAKES NO WARRANTY AS TO WHETHER ADVERTISER WILL REALIZE ANY PROFIT OR RECEIVE ANY PAYMENT FROM THE LEADS PROVIDED. UNLESS SET FORTH OTHERWISE HEREIN, BOTH PARTIES DISCLAIM ANY WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW, OR IN EQUITY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, OR PERFORMANCE, OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
10. LIMITATION OF LIABILITY
EXCEPT FOR INDEMNIFICATION OBLIGATIONS AND AS OTHERWISE PROVIDED FOR HEREIN, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND (II) PUBLISHER SHALL NOT BE LIABLE TO ADVERTISER FOR AN AMOUNT GREATER THAN THE AMOUNTS PAID TO PUBLISHER BY ADVERTISER DURING THE SIX MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM.
11. INDEMNIFICATION
11.1 Advertiser agrees to indemnify, defend, and hold harmless Publisher and its officers, directors, employees, representatives, agents, subsidiaries, and affiliates, from and against any and all third party claims, actions, liabilities (including all reasonable costs, expenses, and attorneys’ fees) arising from, or in connection with, (i) any claim that Advertiser’s use of the Leads or Related Information violates any Applicable Law, Rule Regulation, privacy or publicity right, intellectual property right, or any other right, except to the extent that such claim is based on any action or omission of Publisher; (ii) the Advertiser Products; or (iii) Advertiser’s breach of any of its obligations, representations, or warranties under this Agreement including the obligation set forth in Section 5.2 to report, collect, and pay the applicable sales or use taxes in any state.
11.2 Publisher agrees to indemnify, defend, and hold harmless Advertiser and its officers, directors, employees, representatives, agents, subsidiaries, and affiliates, from and against any and all third party claims, actions, liabilities (including all reasonable costs, expenses, and attorneys’ fees) arising from or in connection with (i) any claim that the products and/or services provided by Publisher hereunder violate any Applicable Law, Rule or Regulation or publicity right, intellectual property right, or any other right, except to the extent that such claim is based on any action or omission of Advertiser; or (ii) Publisher’s breach of any of its obligations, representations, or warranties under this Agreement.
11.3 The party seeking indemnification (“Indemnified Party”) shall promptly notify the other party (“Indemnifying Party”) in writing of all such claims and shall accommodate the Indemnifying Party’s reasonable requests for cooperation and information. The Indemnified Party shall agree to Indemnifying Party’s sole control over the defense and any settlement of such claims; provided, however, that the Indemnifying Party may not agree to any settlement that could adversely affect the rights or interest of the Indemnified Party without their express written consent. The foregoing indemnity obligations may not apply in the event, and to the extent, that such claim is based on any action or omission of the Indemnified Party.
12. NO ASSIGNMENT
Neither party may assign its rights or obligations under this Agreement without written consent from the other party, such consent not to be unreasonably withheld or delayed; provided, however, nothing shall prevent either party from assigning its rights or obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of all or substantially all of the assets of the business of the assigning party, or any other transaction in which ownership of fifty percent (50%) or more of the assigning party’s voting securities is transferred.
13. FORCE MAJEURE
Neither party shall be liable for delays or nonperformance of this Agreement if such delay or nonperformance was caused by: (i) so-called “act of God”, act of war, strike, fire, natural disaster, or accident; (ii) lack of availability of materials, fuel, or utilities; or (ii) any other cause beyond such party’s control.
14. CONFIDENTIAL INFORMATION
Except to the extent an applicable governmental law, order, decree, regulation, rule, or process requires disclosure, for a period of one (1) year after the expiration of the Term the party receiving Confidential Information (“Recipient”) agrees: (a) to safeguard the Confidential Information and prevent any unauthorized access, reproduction, disclosure and/or use of any of the Confidential Information using reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information; (b) to disclose the Confidential Information only to those affiliates, officers, directors, employees and/or agents and advisors of the Recipient who need to know such information to consider and/or carry out the purposes of this Agreement; (c) not to sell, lease, license, disclose or otherwise transfer any Confidential Information to any third party; and (d) to notify the disclosing party (“Discloser”) promptly in writing or email of any unauthorized use or disclosure of the Confidential Information. Recipient agrees that the Discloser exclusively owns and holds all rights to its Confidential Information. Recipient shall be responsible and liable for any unauthorized disclosure or use of the Confidential Information by its representatives. Unless reasonably required otherwise, if disclosure is required, the receiving party shall provide written notice thereof to the disclosing party as soon as reasonably possible and shall reasonably cooperate with the disclosing party in resisting the disclosure of, or obtaining confidential treatment for, such Confidential Information. Upon the completion of the Services, or upon the Discloser’s written request, Recipient shall at its choosing, (i) promptly return to the Discloser all documents (paper, electronic or otherwise) embodying Confidential Information and all notes, analyses, compilations, studies, interpretations or other documents prepared in connection therewith which contain or are based on Confidential Information and/or (ii) delete or destroy and certify in writing of such to the Discloser all documents (paper, electronic or otherwise) embodying Confidential Information and all notes, analyses, compilations, studies, interpretations or other documents prepared in connection therewith which contain or are based on Confidential Information, provided, however that Recipient may retain copies of any Confidential Information necessary to comply with applicable law, rule or regulatory authority or internal document retention policy and not be required to destroy, delete, or modify any backup tapes or other media made pursuant to automated archival processes in their ordinary course of business provided such retained Confidential Information continues to be subject to this agreement.
15. NOTICES
All notices, demands and other communications hereunder must be in writing and shall be deemed to have been duly given (i) if mailed by certified mail, postage prepaid, on the date three days from the date of mailing, (ii) if delivered by overnight courier, when received by the addressee or (iii) if sent by facsimile, on receipt by the sender of electronically generated confirmation of transmission, or (iv) if sent by email, on receipt by the sender of electronically generated confirmation of transmission and a read receipt; in each case to the parties at the addresses set forth below:
Publisher: ADDRESS TO BE DEFINED IN THE SIGNED I/O ORDER FORM.
Advertiser: ADDRESS TO BE DEFINED IN THE SIGNED I/O ORDER FORM.
16. Miscellaneous
These Terms and all applicable IOs and addenda attached thereto: (i) shall governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law; and (ii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, electronic or otherwise, between the parties. If any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. The parties consent to the exclusive jurisdiction of the state and federal courts having jurisdiction over New York County, New York and waive the right to trial by jury. Each party is an independent contractor. Except as set forth in this Agreement, neither party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the party’s prior written consent. This Agreement may be executed in two or more counterparts, which together shall constitute a single agreement. This Agreement and any documents relating to it may be executed and transmitted to any other party by facsimile, which facsimile shall be deemed to be, and utilized in all respects as, an original, wet-inked manually executed document. Signatures provided by facsimile transmission or in PDF format sent by electronic mail shall be deemed to be original signatures.
Questions About Terms of Use
If you have any questions or concerns about this Terms of Use policy, please contact us at:
Benjamin Capital Partners Inc. | Email: support@benjaminone.com
This Terms of Use was last updated on SEPTEMBER 4TH 2024
