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1. INTRODUCTION AND DEFINITIONS
- 1.1 Welcome to the MGID’s Terms of Service for Publishers (“TOSP”). MGID, Inc. (“Advertising Platform”) agrees to provide any Publisher (defined in section 1.3(q) below) and, if applicable, Publisher’s authorized users, access to the MGID.com and MGID’s Dashboard, and any other MGID affiliate(s) displaying these TOSP subject to your acceptance of and compliance with these TOSP, and the terms and conditions of the Complete Agreement defined in section 1.2 below.
- 1.2 The “Complete Agreement” is comprised of the terms and conditions stated in the TOSP, any and all incorporated Insertion Order(s), any and all incorporated Placement and Format Instruction(s), and any and all incorporated Data Protection Addendum(s). This Complete Agreement constitutes a binding agreement between the Publisher and the Advertising Platform. In the event that any of the terms of these TOSP are inconsistent or contradict the terms of the Insertion Order(s), the terms of the lastly applicable incorporated Insertion Order shall control.
- 1.3 For the purposes of these TOSP and the Complete Agreement -
- a. The term “Ad Block” shall mean any mechanism(s), software, browser extension(s) or application(s) that allows or in any way facilitates the ability of a viewer of Publisher’s URL(s) to block MGID’s Ad Unit(s) or Content placed on the Publisher’s URL(s).
- b. The term “Adjusted Revenue” shall mean the income earned and received by the Advertising Platform through MGID’s Ad Unit(s) distribution via the Publisher’s URL(s) during the Term of Agreement less direct costs which include transaction fees, commissions, refunds, chargebacks and collection costs which shall not exceed more than 10% of the unadjusted revenue.
- c. The term “Applicable Laws” shall mean the law of the state of New York and any other applicable federal, state and foreign laws or regulations, Children's Online Privacy Protection Rule ("COPPA") and California Consumer Privacy Act.
- d. The term “Confidential Information” shall mean any information that includes technical information or plans concerning services provided under this Complete Agreement and information disclosed by one party to the other party that is confidential or should reasonably be assumed to be confidential under the circumstances. Confidential Information does not include information that is:
- i. generally known to the public through no fault of either the Advertising Platform or the Publisher;
- ii. rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality;
- iii. independently developed by the receiving party without the use of the disclosing party’s information; and
- iv. rightfully obtained by the receiving party from a third-party that has no duty of confidentiality to the effected party.
- e. The term “Content” shall mean any graphical, textual, and/or auditory media which may include text, data, information, photos, images, graphics, audio or video.
- f. The term “CPM” or “Cost Per Thousand Impressions” shall mean the price paid by the Advertising Platform to the Publisher for the display of MGID’s Ad Unit(s) one thousand times.
- g. The term “Fees” shall mean the amount the Advertising Platform is obligated to pay to the Publisher as compensation for the services rendered to the Publisher under the conditions chosen by the Publisher in the MGID Dashboard or as in the corresponding Insertion Order(s).
- h. The term “Final Report” shall mean an adjusted monthly report of activity under this Complete Agreement provided by the Advertising Platform via MGID Dashboard.
- i. The term “Holiday CPM” or “Holiday Cost Per Thousand Impressions” shall mean the reduced rate paid by the Advertising Platform to the Publisher for the display of MGID’s Ad Units one thousand times during the Holiday Season.
- j. The term “Holiday RPM” or “Holiday Cost Per Thousand Impressions” shall mean the reduced rate paid by the Advertising Platform to the Publisher for the display of MGID’s Ad Units one thousand times during the Holiday Season.
- k. The term “Holiday Season” shall mean the period of time between December twenty-four (24) and January eight (8) the next subsequent year for a total of fifteen (15) days.
- l. The term “MGID’s Ad Unit(s)” shall mean the space(s) on the Publisher URL(s) where one or more advertisements are displayed via integrated Advertising Platforms code through Publisher’s URL(s) in order to monetize internet traffic.
- m. The term “MGID Dashboard” shall mean the Advertising Platform’s web-based Advertising Platform’s proprietary analytics dashboard containing statistics and other vital functions.
- n. The term “Net Revenues” shall mean the sum earned and received by the Advertising Platform from the online advertisement distribution via Publisher’s URL(s) during the Term of Agreement less direct costs which include transaction fees, commissions, refunds, chargebacks, any applicable sales or use taxes or value added taxes that the Advertising Platform is obligated to charge under Applicable Law, and collection costs which shall not exceed 10% of the revenue.
- o. The term “Placement” shall mean the Content placed on the Publisher’s URL(s).
- p. The term “Platform” shall mean the Advertising Platform’s proprietary technologies for monetizing online traffic with the Platform serving as the broker or intermediary between the Publisher and the Advertising Platform.
- q. The term “Publisher” shall mean the entity accepting the Complete Agreement, and/or the entity named in any and all Insertion Order(s) and any of its Affiliate(s) that execute any Insertion Order(s), that displays MGID’s Ad Unit(s) on the Publisher’s URL(s).
- r. The term “Publisher’s URL(s)” shall mean the applicable Publisher’s domain(s), sub-domain(s), web page(s), application(s) and/or platform(s).
- s. The term “Recommendations” shall mean the display of the Content that the Advertising Platform delivers to the viewer of Publisher’s URL(s).
- t. The term “RPM” or “Revenue Per Thousand Impressions” shall mean the price paid by the Advertising Platform to the Publisher for the aggregate display of MGID’s Ad Unit(s) one thousand times on the Publisher’s URL(s).
- u. The term “Term of Agreement” shall mean the entire period of time during which the Complete Agreement is in effect unless the Complete Agreement is otherwise terminated pursuant to the terms the Complete Agreement. The Term of the Complete Agreement shall commence and end on the dates chosen by the Publisher via MGID Dashboard or as specified in an applicable Ingestions Order(s).
- v. The term “Traffic Fraud” shall mean:
- i. the artificial inflation of clicks or impressions on the Recommendations;
- ii. the use of bots or automated means of generating impressions;
- iii. the encouragement in any way of a third-party to click on the Recommendations using incentives or other similar methods of generating traffic on the Recommendations;
- iv. the use of any non-human impressions, including crawlers and parsers; and
- v. the use any auto-refresh functions for additional revenue accrual visits to the Publisher’s URL(s) which occur without knowledge or genuine intent of a user or driven by non-human actors.
- w. The term “VPN” shall mean the use of a Virtual Private Network which hides the user’s IP address by letting the network redirect the user’s IP address through a specially configured remote server run by a Virtual Private Network host.
2. SCOPE OF SERVICES
- 2.1 The Publisher grants the Advertising Platform the right to interact with the Publisher’s URL(s) for the purposes of developing and serving of Content to the viewer of the Publisher’s URL(s).
- 2.2 The Publisher agrees that each Placement is governed by the Complete Agreement.
- 3.1 The Advertising Platform agrees to provide the Publisher with access to the MGID Dashboard to access reports and to carry out other functions provided by the dashboard contingent upon the Publisher’s adherence to the Complete Agreement.
- 3.2 The Advertising Platform agrees to provide to the Publisher access to the daily reports via MGID’s Dashboard. The Final Report which may or may not differ from the unadjusted report(s) will be either provided within ten (10) business days of each reporting period or within a period specified by the applicable Insertion Order(s).
- 3.3 The Final Report will provide the conclusive basis for calculation of the actual Fees charged to the Advertising Platform for the services rendered to the Publisher under the Complete Agreement.
- 3.4 The Publisher agrees to work in good faith with the Advertising Platform in the event of a discrepancy of over fifteen percent (15%) between the Advertising Platform’s Final Report and the data obtained by the Publisher. If any dispute arises under this clause, the Advertising Platform and the Publisher shall seek to resolve any such dispute between them by negotiating promptly with each other in good faith and carrying out comprehensive internal investigations.
4. LIMITATION AND PROHIBITIONS
- 4.1 The Publisher agrees not to:
- a) obscure the Advertising Platform’s Content or MGID’s Ad Units;
- b) minimize, remove or otherwise inhibit the full and complete display of the advertising materials;
- c) artificially inflate clicks or impressions on the Recommendations;
- d) encourage or require any third-party to click on the Recommendations using incentives or other similar methods of generating traffic on the Recommendations;
- e) use any non-human impressions, including crawlers and parsers;
- f) restrict access in any way to the Publisher URL(s) which contain or should reasonably contain MGID Ad Unit(s); and
- g) use any auto-refresh functions for additional revenue accrual.
- 4.2 If the Advertising Platform reasonably determines that the Publisher engaged in Traffic Fraud, the Publisher must provide adequate evidence to sufficiently disproves any indicia of Traffic Fraud. The Advertising Platform’s determination of the fraudulency of delivered impressions shall be final thereby absolving the Advertising Platform from its responsibility for making payments on the fraudulent impressions. If the Advertising Platform had already paid for internet traffic later determined to be fraudulent, the Advertising Platform may use the already paid amount against future fees owed to the Publisher.
- 4.3 The Publisher agrees not to employ any mechanism(s) to cloak, hide, or obscure in any way the place of origination of impressions referred to the Publisher URL(s). Any misrepresentation of the place of origination of impressions referred to the Publishers URL(s) shall constitute a material breach of this Agreement.
- 4.4 The Publisher may not deploy on any Publisher URL(s) content or Recommendations that:
- a) display adult, obscene, pornographic, defamatory, libelous, abusive, or illegal content;
- b) promote racism, violence, hate or discrimination;
- c) facilitate the sale of firearms, the promotion of terrorism, the sale of illegal drugs and the promotion of criminal activities;
- d) contain content that promotes activities that are understood or seen as internet abuse including but not limited to the use of spyware, use of corrupted file(s) virus(es), or the use of any other materials that are intended to damage or render inoperable software or hardware;
- e) infringe, promote infringement or violation of any third-party’s intellectual property rights or any other third-party’s rights; and
- f) violate United States economic sanctions or trade restrictions.
- 4.5 The Advertising Platform reserves the right to disable Publisher’s URL(s) with or without any perquisite warning if the Publisher breaches Section 4.4 (relating to content or Recommendations deployed on any Publisher URL(s)) of this Complete Agreement. The Advertising Platform reserves the right to suspend any payments to the Publisher until Section 4.4 violation of the Complete Agreement is completely cured.
- 4.6 The process of delivery of Advertising Platform’s Recommendations via MGID’s Ad Unit(s) to the Publisher URL(s) is an indivisible product. The Publisher may not employ any mechanism(s), software, browser extension(s) or application(s) on the Publisher URL(s) to interfere, augment, or change in any way the indivisible product provided by the Advertising Platform of delivery of the Recommendations via MGID’s Ad Unit(s) to the Publisher URL(s). Any violation of this section constitutes a material breach of the Complete Agreement with the Advertising Platform reserving the right to suspend any payments to the Publisher until this violation is completely cured.
- 5.1 The Advertising Platform shall pay the Publisher the Fees for serving the Advertising Platform’s Recommendations delivered via the Publisher URL(s) as measured by the Advertising Platform's tracking system.
- 5.2 The Publisher agrees that the following visits or impressions shall not be calculated towards the Fees amount:
- a) visits or impressions of three seconds or less to the Publisher URL(s); and
- b) visits or impressions to the Publisher URL(s) which occurred through the use of a VPN.
- 5.3 The Publisher shall provide written notice to the Advertising Platform within thirty (30) calendar days of the receipt of the Final Report if the Publisher intendeds to dispute in any way any portion of such report. This written notice has to clearly indicate the portion of the report disputed and has to be accompanied with adequate supporting evidence sufficiently detailing the Publisher’s position. The Advertising Platform shall provide a written response to a properly executed Publisher’s dispute within thirty (30) calendar days of receipt of a properly executed Publisher’s dispute. Any portion of the Final Report that is not properly disputed within thirty (30) calendar days of the receipt of the Final Report by the Publisher shall be considered as acceptance of all parts of the Final Report by the Publisher.
- 5.4 The Publisher and the Advertising Platform will be responsible for identifying and paying all taxes and other governmental contributions, fees, and charges (and any penalties, interest, and other additions thereto) that are imposed on each party upon or with respect to the transactions, payments and Fees received by either party under the Complete Agreement as required by the Applicable Law. The Fees payable by the Advertising Platform to the Publisher are inclusive of all national, state, or local taxes, fees, and contributions. Thus, the Advertising Platform will not be liable for the payment of any amount beyond the Fees.
- 5.5 Whenever the Advertising Platform finds that a higher or a lesser than the correct amount of payment has been made to the Publisher, the Advertising Platform may adjust any subsequent payment to cure the error.
- 5.6 To ensure proper payment, the Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with the Publisher’s account. The failure to comply shall result in delay of payment of Publisher’s Fees.
- 5.7 Any Fees owed to the Publisher which are less than one hundred dollars ($100 USD) shall be accrued and distributed in subsequent monthly cycle.
- 5.8 In order to alleviate the losses incurred by the Publisher resulting from the viewers’ use of Ad Block on the Publisher’s URL(s), the Advertising Platform offers an extra anti-Ad Block service. The Advertising Platform’s anti-Ad Block service allows the Publisher to continue the uninterrupted display of MGID’s Ad Unit(s) or Content on the Publisher’s URL(s) to viewers using Ad Block. If the Publisher subscribes to such extra anti-Ad Block service, the Publisher shall be compensated under a separate revenue share payment scheme for the Publisher’s URL(s) viewers who use an Ad Block. Such separate revenue share payment scheme shall supersede any other payment scheme or structure in the Complete Agreement or in any Insertion Order in connection with the Publisher’s URL(s) viewers who use an Ad Block. Under such separate revenue share payment scheme, the Publisher shall be compensated with 40% forty percent of Adjusted Revenue provided to the Publisher and 60% sixty percent of the Adjusted Revenue provided to the Advertising Planform.
- 5.9 During the Holiday Season, the Publisher shall be compensated at a Holiday RPM or Holiday CPM equaling to 80% of Fixed RPM or Fixed CPM specified in the latest or applicable Insertion Order(s).
6. TERMINATION AND CANCELLATION
- 6.1. The entire period of time during which the Complete Agreement is in effect is specified by the Term of Agreement.
- 6.2 The Complete Agreement may be immediately terminated by either the Advertising Platform or the Publisher if and only if:
- a) either the Advertising Platform or the Publisher commits a material breach of its obligations contained in this Agreement and such breach is not cured within ten (10) days of the receipt of written notice of breach from the non-breaching party;
- b) a bankruptcy or other insolvency proceeding is filed by or against either the Advertising Platform or the Publisher;
- c) either the Advertising Platform or the Publisher files a formal or an informal application for the appointment of a receiver of the other party’s property;
- d) either the Advertising Platform or the Publisher makes an assignment for the benefit of creditors;
- e) either the Advertising Platform or the Publisher becomes insolvent, ceases to have the ability to pay its debts regularly, and stops carrying out ordinary course of business;
- f) there is a substantial reduction of thirty (30) percent or more in a period of ten (10) or more consecutive days in the volume of traffic generated by the Publisher URL(s) which is not cured within fourteen (14) days of the receipt of written notice of the reduction;
- g) there is a substantial change in the actual or intended audience composition of Publisher URL(s) which is not permanently corrected within fourteen (14) days of the receipt of written notice of the change; or
- h) there is a substantial layout or design change in Publisher URL(s) which materially affects the Advertising Platform’s performance or viewability which is not cured within thirty (30) days of the receipt of written notice of the change.
- 6.3 In case of a material breach of the Complete Agreement, or occurrence of one of the early immediate termination conditions enumerated in section 6.2, either the Advertising Platform or the Publisher shall have the discretion to terminate or renegotiate the Complete Agreement upon ten (10) days written notice to the other party.
- 6.4 Upon termination of the Complete Agreement, it shall be the Publisher’s obligation to remove any pixels, tags, or scripts provided by the Advertising Platform. The Advertising Platform shall carry no liability for any losses related to or arising out of the Publisher’s failure to do so. To the extent that the Publisher continues to display any of MGID’s Ad Unit(s) beyond the Term of Agreement, the Publisher will be compensated Fees at a discounted rate of fifty (50)% percent.
- 6.5 Upon termination of the Complete Agreement for any reason, any unused funds should be returned to the Advertising Platform within five (5) business days of termination.
- 6.6 Either the Advertising Platform or the Publisher may terminate the Complete Agreement for any reason by providing a sixty (60) days written notice to the other party.
7. WARRANTIES AND REPRESENTATIONS
- 7.1 The Publisher represents and warrants that:
- a) it owns or is authorized to operate the Publisher URL(s);
- b) the content on the Publisher URL(s) and the Publisher URL(s) are either owned by Publisher or properly licensed for the use of the Publisher under the applicable law of the relevant jurisdiction;
- c) it has the full right and authority to grant the rights granted under this Complete Agreement; and
- d) the Advertising Platform’s use of the Content on Publisher URL(s) under this Complete Agreement will not infringe upon the rights of any third party.
- 7.2 THE ADVERTISING PLATFORM PROVIDES THE SERVICE “AS IS.” ADVERTISING PLATFORM EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY THE ADVERTISING PLATFORM.
- 7.3 The Advertising Platform and the Publisher represent and warrant that they shall comply with all the Applicable Laws.
- 8.1 Neither the Advertising Platform or the Publisher will use or disclose to any third-party the other party’s Confidential Information except as necessary for the performance of the Complete Agreement. The foregoing obligations will not restrict either party from disclosing the Confidential Information pursuant to a court order from a court of competent jurisdiction upon receipt of prior written notice. Either the Advertising Platform or the Publisher that advertently or inadvertently disclosed any of the other party’s Confidential Information shall be liable for all the damages resulting from the unauthorized disclosure.
9. PROMOTIONAL ACTIVITIES
- 9.1 Promptly following the execution of this Complete Agreement, the Advertising Platform and the Publisher shall each have the right to individually or jointly issue a press release (subject to each party’s prior review and approval which shall not be unreasonably withheld or delayed) or to perform other public relations activities announcing their relationship where each party may jointly or separately announce certain terms of the Complete Agreement. Each party shall provide reasonable support for such press releases and other public relations activities. In no event the Advertising Platform or the Publisher may disclose any Confidential Information.
- 9.2 The Publisher authorizes the Adverting Platform to use its name, logo and/or trademark without notice to or consent by the Publisher, in connection with certain promotional materials that the Adversity Platform may disseminate to the public. The promotional materials may include, but are not limited to, brochures, video tape, internet website, advertising in newspaper and/or other periodicals, and any other materials relating the fact that the Publisher has a contractual relationship with the Advertising Platform and such materials may be developed, disseminated and used without the Publisher’s review. Nothing herein obligates the Adverting Platform to use Publisher’s name, logo and/or trademark, in any promotional materials of the Adverting Platform.
- 10.1 The Publisher understands and agrees that the Advertising Platform will be the exclusive Content Recommendation service provider on the Publisher URL(s) during the Term of Agreement. The Publisher also agrees that it will not engage with any other third party (including but not limited to AdBlade, Taboola, Outbrain, Media.net, Revcontent, Verizon/Yahoo Gemini, TripleLift, Nativo, Sharethrugh, BroadSpring, AdBlade, AdNow, BroadSpring, Connatix, Content.Ad, Crowdignite, Dianomi, Digiteka, Google Content Recommendations, Gravity, Inform, Kargo, Media.net, Microsoft Bing, Nativo, Outbrain, Polar, Publicis, Qwertize, RevContent, Sharethrough, Spot.IM, Teads, Taboola, Tout, TripleLift, UOL, Virool, Vuble, Yahoo Gemini, Yieldmo, ZergNet, and Zinc by Zedo) to make Content Recommendations on the Publisher URL(s) or provide Content Recommendation services on the Publisher URL(s) similar to the service provided by the Advertising Platform. Any violation of this exclusivity clause shall be considered a material breach of this Complete Agreement.
- 10.2 In case of a breach of the exclusivity clause 10.1, the Publisher shall pay to the Advertising Platform all actual damages or average market damages (whichever is higher) resulting from such exclusivity breach. The Publisher agrees that the actual damages shall be equal to the Advertising Platform’s average monthly gross revenue generated from Publishers URL(s) for the three (3) months immediately preceding the breach or the number of months remaining in the Term of Agreement (whichever is greater). The Publisher further acknowledges that nothing in this provision limits the Advertising Platform’s rights to seek further indemnification that exceed the compensatory sum.
- 10.3 The Publisher acknowledges that the restrictions set forth in exclusivity clause 10.1 are essential to the Advertising Platform’s business and that any breach of this clause will cause irreparable harm and significant injury to the Advertising Platform for which monetary damages may not be solely adequate. Accordingly, in addition to any other rights or remedies that the Advertising Platform may have, the Advertising Platform shall have the right to obtain an immediate injunction to enjoin any current, future or threatened breach of the exclusivity clause -10.1, without having to post a bond or any other security. Additionally, if the Advertising Platform is found to be the prevailing party in any formal or informal legal action tied to the exclusivity clause - 10.1, the Advertising Platform shall be entitled to receive compensation for reasonable attorneys’ fees tied to the resolution of the matter.
11. DATA PROTECTION
- 11.1 During the Term of Agreement, the Advertising Platform grants the Publisher a non-exclusive, non-transferable, and revocable license to use, reproduce, transmit and distribute the Content solely in order to provide services under this Complete Agreement.
- 11.2 Except as expressly provided in this Complete Agreement, the Publisher and the Advertising Platform retain all rights, titles and interests (including all intellectual property rights) in the Content, trademark(s), logo(s), and service mark(s). All rights not expressly granted in this Complete Agreement are reserved by each party.
- 11.3 The Advertising Platform and the Publisher will strive to protect all personally identifiable information obtained under this Complete Agreement and limit any authorized disclosures of such information to third-parties.
- 11.4 In addition to complying with all of the Applicable Laws, the Advertising Platform and the Publisher shall be individually responsible for providing all of the applicable notices and obtaining all of the relevant consents during the course of this Complete Agreement and for the purposes of carrying out this Complete Agreement as required by the Applicable Laws.
- 12.1 The Advertising Platform and the Publisher shall defend, indemnify and hold harmless the other party and its respective agents, affiliates, subsidiaries, directors, officers, employees, contractors, and partners against any and all-third party claims resulting from the breach of either parties’ duties, obligations and representations under this Complete Agreement. In the event that such legal action is commenced, both parties agree that:
- a) the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations under this Complete Agreement except to the extent it has been damaged);
- b) the indemnifying party shall have the sole control over the defense(s) or settlement(s) in such a legal proceeding (except the indemnifying party may not enter into any settlement that may adversely affect the rights or obligations of the indemnified party without the indemnified party's prior written consent);
- c) at the indemnifying party's request and expense, the indemnified party must cooperate in the investigation and defense of any legal claim tied to such legal action; and
- d) the indemnified party shall have the right to participate in all defense(s) and all relevant legal proceedings with counsel of its own choosing at the indemnified party's own expense.
13. LIMITATION OF LIABILITY
- 13.1 THE ADVERTISING PLATFORM AND THE PUBLISHER AGREE THAT THE AGGREGATE LIABILITY OF A PARTY TO THE OTHER PARTY FOR ANY ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE OR LOSS IN ANY WAY ARISING OUT OF OR RELATED TO THIS COMPLETE AGREEMENT SHALL BE LIMITED (I.E., MAY NOT BE MORE THAN (BUT CAN BE LESS THAN)) TO THE AMOUNTS PAID OR REQUIRED TO BE PAID BY THE ADVERTISING PLATFORM TO THE PUBLISHER PURSUANT TO THIS COMPLETE AGREEMENT DURING THE THREE (3) MONTHS PERIOD IMMEDIATELY PRIOR TO THE MONTH IN WHICH THE MOST RECENT EVENT GIVING RISE TO THE LOSS OCCURRED. FURTHERMORE, EXCEPT AS PROVIDED IN SECTION 10-EXCLUSIVITY OF THIS COMPLETE AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECULATIVE, FUTURE, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND/OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES AND/OR WAS NEGLIGENT. THE PROVISIONS OF THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE.
14. CHOICE OF LAW
- 14.1. This Complete Agreement shall be governed by and construed in accordance with the laws and principles of the State of New York, without giving effect to any choice or conflict of law provision or rule. Any dispute, legal action or proceeding arising under or in connection with this Complete Agreement shall be brought exclusively in the federal or state courts located in the state, county and city of New York, and the Advertising Platform and the Publisher hereby irrevocably consent to personal jurisdiction and venue thereof, and waive any right either party may have had to object to such venue on the basis of lack of personal jurisdiction or to transfer venue of any such action or proceeding even if such other venue may be more convenient in any way.
- 15.1 This Complete Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersedes all prior agreements or understandings, written or oral, relating to its subject matter. The Advertising Platform and the Publisher agree to use their respective best, diligent and good faith efforts to fulfill all their obligations under the Complete Agreement. The Advertising Platform and the Publisher recognize however, that to effectuate all the purposes of the Complete Agreement, it may be necessary either to enter into future agreements or to modify the Complete Agreement or both, specifically with the use of future Insertion Order(s). For example, and without limitation, the Advertising Platform and the Publisher agree that as technology and needs of parties develop, they may desire to expand this Complete Agreement to cover the changes. In such event, the Parties agree to cooperate with each other in good faith to properly execute amendments to this Complete Agreement.
- 15.2 The failure of either the Advertising Platform or the Publisher to enforce strict performance of any of the provision of the Complete Agreement or failure to exercise any right under the Complete Agreement shall not be construed as a waiver of that party’s right under the Complete Agreement.
- 15.3 The Advertising Platform shall have a right to withhold and offset any payments owed to the Publisher under the Complete Agreement against any current or future sums the Publisher owns to the Advertising Platform under present or any other present or future agreement.
- 15.4 Should any section or part of a section within the Complete Agreement be rendered void or unenforceable by any court of competent jurisdiction shall not have an impact on the enforceability or validity of any other clause or a part of clause. Any unenforceable or invalid clause shall be regarded as removed from this Complete Agreement to the extent of its unenforceability and invalidity. Therefore, this Complete Agreement shall be interpreted and enforced as if it did not contain the said clause to the extent of its unenforceability and invalidity.
- 15.5 All notices under the Complete Agreement shall be in writing and either delivered by personal service, by confirmed email, by express courier, or by certified mail with return receipt requested to the address of the receiving party as set forth in the Insertion Order(s) or at such address as may be designated by the Advertising Platform and the Publisher via written notice to the other party or via the MGID Dashboard. All notices under this Complete Agreement will be effective upon receipt.
- 15.7 The Complete Agreement creates an independent contract relationship between the Advertising Platform and the Publisher, and neither party will be deemed to be an employee, agent, partner, or legal representative of the other. Neither Advertising Platform nor the Publisher will have any right, power or authority to create any obligation or responsibility on behalf of the other unless explicitly stated in this Complete Agreement.
- 15.8 This Complete Agreement may be executed in multiple counterparts, each of which will be considered to be an original, but all of which together will constitute one and the same instrument.