Terms & Conditions
This Advertising Agreement for Publishers ("Agreement") is between REKKET Network Ltd., a company incorporated in the British Virgin Islands, and all of its legal subsidiaries and affiliates (collectively referred to herein as “Pubmeld”), and publisher ____________________ ("Publisher") with its primary address at _____________________ to establish the terms and conditions by which Publisher may display advertising on behalf of Pubmeld customers ("Advertisers"). Other capitalized terms used in this Agreement are defined below.
DEFINITIONS "Ad" or "Creative" means the graphic, video, video companion banners or text file(s) provided by Pubmeld to Publisher to be displayed by Publisher on behalf of Advertiser and/or Pubmeld. "Compatible Device" means a User's Mobile communication device that is compatible with Pubmeld’s ad-serving system, and which may include, without limitation, wireless, mobile or cellular communication devices, Internet communications devices, or other communications or transmission technologies now known or hereafter devised. "Conventional Website" means a virtual location on the internet that is designated by a unique URL that is under the control of Publisher except for Mobile Websites. A Conventional Website may be made up of one or more web pages and may be accessed by a User on a Compatible Device. "Impressions" means the number of times an Ad is served to, and received by, a User on a Media Site as measured by Pubmeld. "Intellectual Property" means trade names, logos, trademarks, service marks, trade dress, internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used by a party or which may be developed and/or used by it in the future. "Media Sites" means the aggregate of Conventional Websites and/or Mobile Websites owned by, aggregated by, or under the control of Publisher. "Mobile" means cellular, tablet, and/or handheld devices. "Mobile Website" means a Conventional Website that has been optimized to a Mobile device format. "Network" means the aggregate of third party Websites and Properties that display Pubmeld Ads. "Network IP" means the Ads, Pubmeld Code and/or source code, and other Intellectual Property made available to Publisher in connection with its performance under this Agreement. "PII" means personally identifiable information. "Prohibited Conduct" means conduct, during the course of performance of this Agreement that is listed or related to the proscribed conduct listed in Section 2. "Properties" means each of Publisher's Mobile Websites, or other separately identifiable items of Mobile software or electronic content, that has been: (a) approved by Pubmeld for conversion by Publisher into an Ad-enabled Property (which approval will be indicated by Pubmeld's issuance to Publisher of an ID number to uniquely identify such Mobile Website, or other item in Pubmeld's Ad serving system). "Publisher License Fees" means all license fees and/or other fees required to be paid to third parties, for performance of Publisher's obligations or exercise of Publisher's rights hereunder, for the grant of the licenses hereunder, and for any other act by Publisher under this Agreement. "Pubmeld Code" means pixels, Intellectual Property, software or other computer code, and any deviations thereon, owned and provided by Pubmeld for use by Publisher. "Pubmeld Companies" shall mean Pubmeld and the parent and any divisions, subsidiaries and affiliates. "Pubmeld Websites" means all websites that are owned, operated or hosted by or on behalf of Pubmeld. "Spyware" means computer programs or tools that (i) alter a computer User's browser or other settings or use an ActiveX control or similar device to download ad supporting software without providing fair notice to and obtaining affirmative consent; (ii) prevent a User's reasonable efforts to block the installation of or disable or remove unwanted software; (iii) remove or disable any security, anti-spyware or anti-virus technology on a User's computer; (iv) send email through a User's computer without prior authorization; (v) open multiple, sequential, stand-alone Ads in the consumer's internet browser which cannot be closed without the User closing the internet browser or shutting down their computer; or (vi) other similar activities that are prohibited by applicable law. "Third-Party Channel" means an online application distribution channel operated by a third party for a given type of Property or for Properties associated with a given Compatible Device platform, such as Apple's "App Store" or Google's "Android Market." "User" means any actual person accessing the Media Sites. "Website" means Conventional Websites and Mobile Websites. Pubmeld and Publisher agree as follows: 1. Pubmeld Network Pubmeld reserves the right, in its sole discretion and without liability, to (i) refuse service to any new or existing Publisher or Media Site(s) for any reason; and (ii) reject, omit, or exclude any Publisher or Media Site for any reason at any time with or without notice to the Publisher. This Agreement is voidable by Pubmeld immediately if Publisher fails to disclose, conceals or misrepresents itself in any way. Unless otherwise approved by Pubmeld in writing, Publisher may only have one (1) membership account with Pubmeld however, such accounts may include multiple Media Sites within each respective account designation; each Media Site is obligated by and bound by this Agreement. 1.1 Membership for Websites. Publisher's membership in the Network is subject to prior approval by Pubmeld of Publisher's Websites. Approval of membership in the Network is limited to the Website(s) that Publisher has submitted for approval by Pubmeld. Pubmeld reserves the right to request updated content and technology information at any time after the approval of a Website(s) and Publisher agrees to respond to such request within five (5) business days. Publisher may submit additional Websites for approval during the term of this Agreement; however, Pubmeld shall have no obligation to approve any Website(s), even if the additional Website(s) is the property of an already approved Publisher. 1.2 Pubmeld Websites. Publisher agrees that it will not use the Pubmeld Websites and/or its interfaces or any content therein or data obtained therefrom for any purposes other than as permitted under this Agreement and that Publisher will not disseminate any of the information contained on Pubmeld Websites. Publisher agrees that it will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access or manage Publisher's account with Pubmeld or to monitor or copy the Pubmeld Websites or the content contained therein except on the prior written approval of Pubmeld. Publisher agrees that it will not interfere or attempt to interfere with the proper working of the Pubmeld Websites, interface, or any program thereon, or the Network. Without limitation to the foregoing, Publisher further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the Pubmeld Websites, any programs thereon, or Pubmeld's infrastructure, as determined by Pubmeld. 1.3 Services. Publisher understands and agrees that from time to time the Pubmeld Websites may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Pubmeld may undertake from time to time; or (iii) causes beyond the control of Pubmeld or which are not reasonably foreseeable by Pubmeld, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion, or other failures. While Pubmeld will attempt to provide access to the Pubmeld Websites on a continuous basis, Publisher acknowledges and agrees that Pubmeld has no control over the availability of the Pubmeld Websites on a continuous or uninterrupted basis and any failure resulting from technical difficulties does not represent a failure by Pubmeld to meet its obligations of this Agreement. Publisher also understands and agrees that Pubmeld is not responsible for the functionality of any third-party website or interface. Terms of this Agreement are subject to Pubmeld hardware, software, and bandwidth traffic limitations. Pubmeld reserves the right to discontinue offering any of the functions on the Pubmeld Websites at any time. Except as otherwise specified by Pubmeld, Publisher agrees that it will direct all communications relating to any Pubmeld Website, Ad, Advertiser, or its participation therein directly to Pubmeld and not to any other entity.
2. MEDIA Site Content and Prohibited Conduct
2.1 Pre-approval Required. Any Websites that relate to or have any characteristic of the following shall be approved on a case by case basis: (i) excessive ads, app – quest/test, user generated content (blogs, forums, discussion boards, chat rooms, etc.), (ii) controversial issues (e.g. religion, sexual orientation and/or edgy humor), (iii) wrestling, (iv) anime, (v) old content, and/or (vi) poor quality design and functionality.
2.2 Prohibited Conduct. Media Sites that produce, relate to or have characteristics of Prohibited Conduct are prohibited in the Network. "Prohibited Conduct" is defined as:
2.2.1 Ad Placement & Tracking. Publisher shall not: (i) place Ads in emails without prior consent from Pubmeld; (ii) intentionally place Ads on blank web pages or on web pages with no content; (iii) stack Ads (e.g. place on top of one another so that more than two (2) ads are next to each other); (iv) place Ads on non-approved Websites, or in such a fashion that may be deceptive to the User; (v) for Websites, incentivize offers or create the appearance to incentivize offers; (vi) place statements near the Ads requesting that Users "click" on the Ad (i.e., "Please click here," "visit" the sponsor, "Please visit our sponsor"); (vii) for Websites, place misleading statements near the Ad (i.e., "You will win $5,000"); (viii) redirect traffic to a website other than that listed by the particular Advertiser; (ix) ask Users to take advantage of other ads or offers other than those listed by the particular Advertiser; (x) serve Ads, or drive traffic to such Ads, using any downloadable applications without the prior written approval of Pubmeld, which, if provided, is subject in each case to the following condition: Ads delivered in such approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the User as being active and enabled; serving Ads at any time when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (xi) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the User; (xii) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network IP, Media Site tags, source codes, links, pixels, modules or other data provided by or obtained from Pubmeld that allows Pubmeld to serve the Ad and measure its performance and operate the Network.
2.2.2 Sites. Publisher shall not place any Ads or Network IP on Media Sites that contain, promote, reference or have links to: (i) profanity, sexually explicit materials, hate material, promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of Advertiser or Pubmeld; (ii) software piracy (including but not limited to warez, cracking, etc.), hacking, phreaking, emulators, ROM's, or illegal MP3 activity; (iii) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (iv) websites under construction, or that do not own the domain they are under; (v) charity clicks/donations, paid to surf, personal sites, Media Sites not owned by or under the control of Publisher, ActiveX downloads, no content (link site), all affiliate links, or incentivized traffic; (vi) promote activities generally understood as internet abuse, including but not limited to, the sending of unsolicited bulk email or the use of Spyware.
2.2.3 Search & Miscellaneous. As applicable to the type of Media Site, Publisher shall not: (i) violate guidelines of any search engines being utilized; (ii) engage in search engine spam, doorway pages, cloaking, etc.; (iii) bid on any trademarked name or terms in any pay-per-click "keyword"/"adword" campaign; (iv) conduct search Ads falsely suggesting a link between Pubmeld and a third party or otherwise infringing on a third party's intellectual property rights; (v) engage in any advertising via facsimile or telemarketing; or (vi) engage in any misleading or deceptive conduct.
3. Ad Content and Placement
3.1 Compliance with Industry Standards. Publisher agrees to undertake and place Ads in compliance with this Agreement and Pubmeld issued insertion order (if any), including all Ad placement restrictions or channels specifications, in accordance with the highest industry standards. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other advertisers included in the Media Site.
3.2 No Modifications to Ads or Network IP. Except as permitted under this Agreement, Publisher shall not alter, copy, modify, take, sell, re-use, or divulge in any manner any Creative or Network IP without Pubmeld's prior written consent and any approved modifications shall be owned solely by Pubmeld. Publisher shall not copy Ads and display them directly from a Media Site(s); redirect traffic to a Media Site(s) other than a Media Site(s) specified by Pubmeld; or ask Users to take advantage of other advertisements or offers other than those provided by Pubmeld or Advertiser. Any Pubmeld Ad that is copied, changed, or altered without prior written approval by Pubmeld will result in non-payment for the campaign and may result in termination. Any approved modifications to Pubmeld Code or Network IP shall be owned solely by Pubmeld.
3.3 Requirements for Conventional Websites. Publishers of Conventional Websites shall be solely responsible for (i) managing its advertising content exclusions in the Pubmeld interface; and (ii) placing Ads on Pubmeld approved Conventional Website(s), which placement shall be subject to the terms and conditions of this Agreement. All in page and video Ads must be placed above the fold or within 1,000 pixels of the top of the web page. Pop-under or In-Vue windows cannot be launched from Conventional Websites that launch more than a total of two (2) pop windows, including the Pubmeld pop-under or In-Vue. Skyscrapers or wide skyscrapers and half page formats cannot be placed on the same web page. Publisher agrees to use the Network IP for displaying an Ad and an Ad may not be placed more than once per web page view.
3.4 Video Ads for Conventional Websites. In-stream Ads may be associated with video, audio, or flash entertainment. In-stream video Ads may not be implemented in a stand-alone manner or with generic placeholder files. Publisher agrees to undertake and place video Ads in compliance with the Publisher Video Guidelines. Publisher shall inform Pubmeld whether the video placement is in-stream pre-roll, in-stream mid-roll, in-stream post-roll or in-stream auto-start and whether the placement includes a synchronized companion banner and the category of content to which the placement is adjacent. Further, under no circumstances shall Publishers of Conventional Websites be permitted to run video Ads that (i) are below-the-fold and auto-start; (ii) by default (i.e., without User interaction) do not play the sound track of the Ad; (iii) auto-start and are presented or located in such a manner that would make it unlikely that the Ads would be viewed by actual Users, whether or not the sound is defaulted to off; or (iv) are located in pop-up windows. Publishers are prohibited from (i) serving more than one pre-roll Ad at the same time; (ii) running multiple Ads in a pod; and (iii) auto-start videos. For Mobile Websites, Publisher consents to Pubmeld's right to serve video ads on such Mobile Websites.
3.5 Default Ads. Publisher acknowledges and agrees that Pubmeld may not be able to fill one hundred percent (100%) of inventory with paying Ads. For Conventional Websites, Pubmeld may provide free Publisher-defined default redirects expressly for this reason. Publisher-defined default Ads must adhere to the content guidelines outlined for all Pubmeld Advertisers as set forth in Section 2. Publishers found using default Ads that violate the content restrictions of this Agreement will be removed from the Network. If Publisher chooses not to specify a default redirect, Pubmeld will display so-called 'house' and/or 'AdCouncil' Ads on a Conventional Website when paid advertising is unavailable or when technical difficulties require it. Under no circumstances does Pubmeld guarantee to provide any percent fill of paid Ads to a Media Site.
4. Network Quality Pubmeld will not tolerate or accept any activities it deems harmful or potentially damaging to its reputation and/or business, or that of its customers and/or clients including but not limited to the activities stated in this Agreement. Pubmeld employs individuals for the express purpose of monitoring the Media Sites within the Network to ensure that its' Advertisers receive high quality inventory. Pubmeld has also developed several advanced anti-fraud systems and regularly audits the Media Sites. Any Publisher that commits fraudulent activities, including false clicks, false impressions, or incentivized clicks, will have their accounts permanently removed from the Network and shall not be compensated for fraudulent traffic as determined by Pubmeld in its sole discretion. For Conventional Websites, all Creatives must be served from a Pubmeld server or through a Pubmeld approved 3rd-party-hosted server. Stored images that are loaded from a different location will not count towards any statistic or payment.
5. Proprietary Rights
5.1 Licenses. Provided that Publisher complies with all provisions of this Agreement, Pubmeld hereby grants to Publisher a nonexclusive, limited, revocable license to use, execute, and display the Network IP solely for Publisher's performance of its obligations hereunder. Except for the limited license expressly granted in this Section 5.1, nothing in this Agreement shall be construed as Pubmeld granting Publisher any right, title or interest in Network IP. Publisher acknowledges and agrees that Pubmeld and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world. Publisher's use of the Network IP or the results created thereby, or disseminating or distributing the same, except as expressly permitted by this Agreement, is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law.
5.2 Intellectual Property Ownership. Subject to the limited licenses granted to Pubmeld and/or and Publisher herein, each party shall own and shall retain all right, title and interest in its Intellectual Property. Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.
5.3 Data Ownership. Publisher understands that all data, including, but not limited to, personally identifiable information provided by Users in response to an Ad and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by Pubmeld from such data is the sole and exclusive property of Advertiser and/or the Pubmeld Companies and is considered Confidential Information pursuant to this Agreement. Pubmeld Companies and/or its Advertisers, in their sole discretion, shall have the right to use, market, and re-market the User(s) and/or data without further obligation to Publisher. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data or information, or any portion thereof, to any third-party nor benefit any third party, including without limitation, any such data or information for purposes of enhancing a User's profile. Unless otherwise agreed to in writing by the parties, any other use of such data or information is strictly prohibited.
6. Representations and Warranties
6.1 Publisher Responsibility. The parties hereby acknowledge that Publisher is solely responsible for the method of dissemination of the Ad campaigns and that Pubmeld will not have any control over the method of dissemination and is relying entirely on these warranties made by Publisher. Publisher represents that it has paid all Publisher License Fees and Publisher covenants to timely pay any Publisher License Fees required to be paid during the term of this Agreement. Publisher further expressly agrees that it owns or has appropriate license to the content on its Media Sites, and any Publisher License Fees required for Publisher content are Publisher's obligation and not the obligation of Pubmeld.
6.3 Mutual Warranties. Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and (iii) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
7.1 Obligations. Internet consumer privacy is of paramount importance to Pubmeld, its subsidiaries, and its Advertisers. Pubmeld is committed to protecting the privacy of Users, consumers, and Advertisers, and to do its part to maintain the integrity of the internet. Publisher therefore affirms and attests that it will adhere to fair information collection practices with respect to its performance under this Agreement.
8.1 Payment Rate and Terms. Pubmeld reserves the right to set Ad campaign rates, which may vary with market conditions. Publisher will typically be paid within sixty (60) days, after the end-of-month.
8.2 Additional Payment Terms. Publisher shall not invoice Pubmeld; all Publisher invoices will be discarded. Publishers will be paid at the account level. All accounts will be settled in US dollars. No payment will be issued for any amount less than US$50 ("Minimum Payment Threshold"). All unpaid earnings will rollover to the next pay period. Based on the Minimum Payment Threshold, any Publisher account that goes unpaid for six (6) months becomes subject to immediate payoff and dismissal from the Network. As a condition to Pubmeld's obligation to make payments hereunder to Publisher, Publisher must have on file with Pubmeld (i) their mailing address and/or payment instructions; (ii) email address; and (iii) a completed and accurate W-9 or equivalent (for US-based Publishers) or a completed and accurate W-8BEN or equivalent (for non-US-based Publishers). Publisher payments will be withheld until the appropriate taxation documents are received by Pubmeld. If the required tax documents are not on file with Pubmeld within three months of the date of a scheduled payment, Pubmeld may charge a monthly administrative fee, representing Pubmeld's cost of establishing and maintaining Publisher's account, equal to 25% of the original balance. All payments are based on actuals as defined, accounted and audited by Pubmeld. Pubmeld reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein. Pubmeld will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement. Examples of such acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs.
8.3 Breach or Fraud: If any Publisher violates or refuses to fulfill its responsibilities, or commits fraudulent activity, Pubmeld reserves the right to withhold payment and take appropriate legal action.
8.4 Taxes. Any payments made under this Agreement do not include and are net of any government imposed garnishments (e.g. withholding tax), foreign or domestic governmental taxes or charges of any kind that may be applicable to the sale, licensing, marketing or distribution of the Media Sites. If required by applicable law or authorities, Pubmeld may reduce payments for revenue share, fees, or royalties by the amount of tax, duties, or fees for which Publisher is responsible hereunder, and pay such tax, duties, or fees to the appropriate authorities.
8.5 Calculation. Calculation of Publisher earnings, including Impressions and click through numbers, shall be in Pubmeld's sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to Pubmeld detailing, with specificity, Publisher's concerns. Thereafter, Pubmeld will provide Publisher with an explanation or, if such calculations are determined by Pubmeld to be incorrect, an adjustment. Pubmeld's calculations shall be final and binding. In the event no adjustment is necessary, if so requested by Pubmeld, Publisher agrees to reimburse Pubmeld for its expenses in responding to Publisher's requests under this Section.
9. Indemnity Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher's Media Site(s), (ii) any material to which Users can link through on a Media Site, and/or (iii) any consumer and/or governmental/regulatory complaint arising out of any promotion conducted by Publisher, including but not limited to any spam or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such promotion to Users. Publisher shall indemnify, defend, and hold harmless Pubmeld and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and Advertisers (collectively " Pubmeld Parties") harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees including in-house counsel time, court costs and witness fees) (collectively "Losses") incurred by, or imposed or asserted against, the Pubmeld Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (i) libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Media Site(s); (ii) any breach by Publisher of any duty, representation or warranty under this Agreement; (iii) any breach by Pubmeld of any duty, representation, or warranty to provide Ad(s) for placement on the Media Site(s) due to any breach by Publisher of this Agreement; (iv) a contaminated file, virus, worm, or Trojan horse originating from the Site(s); or (v) gross negligence or willful misconduct by Publisher.
10. Limitations of Warranties and Liability
10.1 Disclaimer of Warranties. ALL SERVICES PROVIDED BY Pubmeld ARE PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Pubmeld MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. Pubmeld IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
10.2 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL Pubmeld BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF Pubmeld HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL REKKET'S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR ONE THOUSDAND DOLLARS ($1,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST Pubmeld MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
10.3 Consideration. PUBLISHER ACKNOWLEDGES THAT Pubmeld HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
11. Term and Termination
11.1 Termination. This Agreement, as may be amended, applies to Publisher for as long as Publisher distributes Ads in the Network. Pubmeld reserves the right to terminate any Publisher from the Network at any time, with or without cause.
11.2 Post-termination. Upon termination, Publisher agrees to immediately remove from the Media Site(s) any and all Network IP supplied to Publisher by Pubmeld. Publisher will be paid, in the next scheduled payment cycle following termination, for all legitimate, non-fraudulently accrued, earnings due up to the time of termination. Upon termination all ties to referrals will be permanently severed and Publisher will not receive nor be entitled to receive future referral commissions hereunder.
12. Confidentiality Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). Pubmeld's Ad campaign rates are considered confidential. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated confidential by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third-party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty; or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, or upon written request by Pubmeld, Publisher must destroy or return to Pubmeld any Confidential Information provided by Pubmeld under this Agreement.
13. Choice of Law and Attorneys' Fees This Agreement is governed by the laws of the State of Florida (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be an appropriate federal or state court in Miami, Florida. The parties consent to such venue and jurisdiction, waive any right to a trial by jury, and agree to waive the personal service of any process upon them by agreeing that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the last address provided by Publisher. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs.
15. Notice Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to (i) for Pubmeld, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: Rekket Network Ltd., PO Box 3321 Road Town, Tortola, British Virgin Islands (effective upon actual receipt); and, (ii) for Publisher at the email or physical address listed on its account (effective upon sending as long as Pubmeld does not receive an error message regarding delivery of the email or five (5) days after mailing, whichever occurs first).
16. Assignment No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of Pubmeld. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. Pubmeld and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
17. Independent Contractors Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party's prior written consent.
18. Marketing Publisher shall not release any information regarding Ad campaigns, Creatives, or Publisher's relationship with Pubmeld or its Advertisers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of Pubmeld. Pubmeld shall have the right to reference and refer to its relationship with Publisher for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual written consent of Pubmeld and Publisher.
19. Force Majeure Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of internet service providers, default due to internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
20. Survival and Severability Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening. Each party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of 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, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
21. Remedies and Waiver Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect the first party's right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.