This Media Sales and Delivery Agreement (hereinafter referred to as “Agreement”), is entered into by and between Masasla Inc. (hereafter “BrandWeaver”), and you (the Party executing an Insertion Order with BrandWeaver, hereinafter referred to as “Marketer”) and Marketer’s Affiliates. BrandWeaver and Marketer are sometimes referred to herein individually as, “Party” and collectively as, the “Parties.”
TERMS AND CONDITIONS
1. DEFINITIONS
a. “Software” means the BrandWeaver software that serves, as applicable, advertisements and other content (“Ads”) on Sources.
b. “Creative(s)” means any advertisement provided by Marketer on behalf of itself or any other clients within its network or any asset provided by Marketer, including, but not limited to, advertising materials, descriptions, white papers, email content, call scripts, webinars, abstracts, case studies, videos, presentations, artwork, or active URLs for advertisements and product sheets.
c. “Affiliate” means an entity or entities that are directly or indirectly controlling, controlled by or under common control with a Party, where control means the ownership or control, directly or indirectly, of more than 50 percent of all of the voting shares; provided that an entity shall be considered an affiliate only for the time during which such control exists.
d. “Campaign” is a set of ad groups (ads, taglines, descriptions, and bids) that share a budget and other settings. Campaigns are often used to organize categories of products or services that Marketer offers.
e. “Insertion Order” (“IO”) is an agreement: (i) authorizing BrandWeaver to create Campaign(s) within the Platform on behalf of Marketer thereby allowing Sources to generate Records consistent with the terms of the IO.
f. The “Advertising Exchange” or “Exchange” is where Marketer will have access to Sources that can generate Records in response to Marketer’s Campaigns.
g. The “Platform” is where all Campaigns will be built on behalf of Marketer pursuant to a signed Insertion Order to be delivered via the Software. Through the Platform, Marketer will be able to view the Campaign settings and utilize the reporting tools.
h. A “Record” is the unit of measure for data provided by a Source in response to a Campaign. A Record, for instance, may include advertising impressions, clicks, actions, or other measurable events as desired and defined in the Insertion Order.
i. “Source” is a publisher, mobile application, media player, mobile content, Affiliate, network, media services provider, and/or other properties approved by BrandWeaver that utilize the Platform to sell Records.
2. SCOPE OF AGREEMENT
This Agreement together with the IO comprise the agreement between BrandWeaver and Marketer. The terms and conditions of this Agreement are hereby incorporated by reference into each IO as if fully set forth therein. Where there is a conflict or inconsistency between the terms and conditions of this Agreement or an IO, the terms and conditions of this Agreement will control and take precedence, except to the extent the conflicting IO expressly provides that the conflicting or inconsistent terms and conditions of the IO take precedence over the terms and conditions of this Agreement.
3. ABILITY TO BIND MARKETER
a. Marketer hereby authorizes and directs BrandWeaver to bind Marketer to the purchase of Records in the Platform, as outlined in the Insertion Orders agreed to between Marketer and BrandWeaver.
b. The Insertion Orders may include, but are not limited to, the following: (i) the Cost Per Record range, i.e. how much the Marketer will pay for any given Record; (ii) the total daily / monthly caps on Records to be purchased, i.e. how many Records can be purchased in a day or month; (iii) all campaign targets/fields, i.e. what criteria the Marketer must have for a Record to be valid; and (iv) the end date for a campaign. If no end date is provided, Marketer must provide BrandWeaver forty-eight (48) hours’ notice before a Campaign will be terminated or suspended.
c. Marketer hereby authorizes BrandWeaver to create a Campaign in the Platform, on behalf of Marketer, by using Marketer’s account. If Marketer does not have an account with BrandWeaver, by entering into this Agreement or any IO with BrandWeaver, Marketer authorizes BrandWeaver to create a Marketer account within the Platform consistent with the purpose of this Agreement or IO. All Campaigns are created based on the descriptions in from the IO entered between the Parties.
d. Modifications to the originally submitted IO will only be binding if approved in writing by the Parties, this includes but is not limited to start/end dates, allocation and price. Acknowledged receipt of electronic mail (email) documenting the modifications by both Parties will constitute a writing for these purposes.
e. Marketer agrees that BrandWeaver may purchase Records from any Source within the Platform. If Marketer does not want to purchase Records from a specific Source, Marketer must state, in writing, by Source name or Source’s BrandWeaver Source identification number (“SID”) that it does not want to purchase Records from that Source.
f. Marketer will have limited access to the Platform. Marketer understands and agrees that it will be given access to the Platform to review all Campaigns, Source profiles and the tracking of Records. Marketer will be able to view all Campaign settings and utilize reporting features but will not be able to make changes to its Campaigns. To make changes to a Campaign, Marketer must contact Marketer’s BrandWeaver representative and request that changes be made. If appropriate, BrandWeaver will make the requested changes within forty-eight (48) hours and notify Marketer that the changes have been made. Changes must be in conformity with the IO upon which the campaign was built.
4. PAYMENT AND PAYMENT LIABILITY
a. For Campaign purchases, BrandWeaver will send an invoice to Marketer as indicated on the IO. Payment is due as stated on the IO. Sources will be paid by BrandWeaver upon receipt of funds from Marketer. Any successfully invalidated or returned Records pursuant to section 4.c below that are accepted after the invoice date will be credited to Marketer’s account and applied to any outstanding amounts. If Marketer is also a Source in the Platform, BrandWeaver may credit Marketer’s account with any amount owed by BrandWeaver to Marketer through its Source account.
b. Returns
i. Marketer is responsible to make all returns for allegedly invalid Records by the 15th of each month for the previous month’s delivery of Records. An “Invalid Record” includes, but is not limited to a Record that is (i) spam, invalid clicks, invalid impressions, invalid queries, invalid conversions, or other invalid events on Ads generated by any person, bot, automated program or similar device, including through any clicks, impressions, queries, conversions, or other events originating from IP addresses or computers under a publisher’s control; (ii) clicks, impressions, queries, conversions, or other events solicited or generated by payment of money, false representation, or requests for end users to click on Ads or take other actions; (iii) Ads served to end users whose browsers have JavaScript disabled or who are otherwise tampering with ad serving or measurement; and (iv) any click, impression, query, conversion, or other event occurring on a Property that does not comply with the BrandWeaver Policies. Marketer agrees and acknowledges that it alone is completely responsible for timely submitting returns to BrandWeaver. Should Marketer fail to provide timely returns for allegedly Invalid Records, Marketer forfeits its right to contest Records provided during that billing period and all Records for that billing period will be deemed valid.
ii. In order for a Record to be considered invalid, Marketer must provide BrandWeaver via email with as much of the following information as possible for each returned Record: (i) specify why the Record is being returned; (ii) name of business contact; (iii) phone number of business contact; (iv) mailing address of business; (v) email address of business contact; (vi) any quality assurance notes from Marketer (e.g. “business returned the order” or “the credit card was stolen”); and (vii) if returns are based on the use of anti-fraud programs, what program Marketer is using. BrandWeaver will designate Marketer’s return as incomplete and Marketer will still be charged for all Records if Marketer fails to provide this necessary information.
iii. If a dispute over the validity of Records is not resolved within thirty (30) days, BrandWeaver may deem the questioned Records invalid or valid and accept or withdraw Records on behalf of the Marketer and/or Source. Marketer agrees that BrandWeaver has the sole and absolute final discretion to deem a Record valid or invalid.
c. Payment Liability. Marketer understands that as a technology provider, BrandWeaver has no obligations relating to payments due to any Sources, either joint or several. Marketer agrees that Marketer is solely liable for any and all charges incurred through Campaigns in the Platform created pursuant to executed IOs between the Parties. Marketer will send all payments to BrandWeaver for all valid Records based on the payment terms stated in this Agreement or any IO. BrandWeaver will withdraw its fee, if any, and thereafter timely pay Sources. Marketer agrees to protect, indemnify, defend and hold BrandWeaver and its officers, employees and agents harmless for any and all payments due by Marketer to Sources incurred through the Platform. Marketer further agrees that any dispute regarding the validity or non-payment of a Record is the sole responsibility of Marketer. Should a dispute arise regarding Marketer’s non-payment for allegedly invalid Records, the dispute is solely between Marketer and Source, and not with BrandWeaver. Notwithstanding anything to the contrary in the foregoing paragraph, or anywhere else in this Agreement, upon receipt of payment from Marketer, BrandWeaver will: (i) as between BrandWeaver and Marketer, become solely responsible for the prompt payment of the obligation(s) for which the amount was submitted by Marketer; (ii) hold the amount in trust for the benefit of Marketer; (iii) only pay the Source for which the payment was received; and (iv) indemnify and hold Marketer harmless from and against any and all claims, liabilities, expenses or other costs arising out of or with respect to any failure on the part of BrandWeaver to timely apply such amounts to the proper obligations. If Marketer fails to indicate for which Source or Campaign a payment has been made, Marketer understands that payments will be applied to the oldest Campaigns first.
d. Late Fees and Payments. A five percent (5%) APR will be charged to Marketer for all late payments. If payment is not made by Marketer to BrandWeaver within ninety (90) days of the initial due date, Marketer’s information may be released by BrandWeaver to Source. Both BrandWeaver and Source have the right to collect past due amounts from Marketer. Marketer agrees to pay for reasonable costs and expenses, including attorney fees, for any efforts made by BrandWeaver or Source to collect on past due undisputed amounts.
6. REPRESENTATION AND WARRANTIES
a. Marketer represents, warrants, covenants and agrees that: (i) Marketer enters into this Agreement with the intent to use the Records consistent with the terms of this Agreement, ethical business practices, and all applicable laws and regulations; (ii) Marketer has the full right, power and authority to enter into this Agreement; (iii) the execution of this Agreement by Marketer, Marketer’s use of the Records and Marketer’s performance of its obligations hereunder do not and will not violate any law or regulation, or any agreement to which Marketer is a party; and (iv) Marketer agrees to and authorizes BrandWeaver to use Marketer’s name on all BrandWeaver website(s) and promotional materials. The terms of this Agreement will be held in strict confidence and only the fact that Marketer is working with BrandWeaver will be disclosed to the public, absent a written agreement stating otherwise.
b. BrandWeaver represents, warrants, covenants and agrees that: (i) it holds the necessary 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 BrandWeaver is bound; and (iii) it will provide and maintain the resources, personnel and facilities suitable to perform its obligations under this Agreement. Marketer acknowledges that BrandWeaver makes no representations, warranties or covenants not set forth in this Agreement.
7. INDEMNIFICATION
a. Each Party (the “Indemnitor”) shall indemnify and hold harmless the other Party, as well as the other Party’s officers, directors, members, employees and agents (collectively, the “Indemnified Parties”), from and against any and all losses, liabilities, obligations, damages, actions, suits, proceedings, claims, demands, assessments, judgments, costs, penalties and expenses, including reasonable attorneys’ fees and disbursements, incurred, borne or asserted by a third party against any of the Indemnified Parties in any way relating to, arising out of or resulting from the Indemnitor’s actual or alleged: (i) breach of this Agreement; (ii) intentional or negligent wrongdoing; (iii) violation of the CAN-SPAM Act of 2003, the FTC Act, the Telephone Consumer Protection Act, and all other applicable federal, state and local laws, rules, regulations and guidelines; and (iv) infringement, violation or misappropriation of any patent right, copyright, trademark right, trade dress right or other intellectual property right. In addition, Marketer agrees to fully indemnify, and hold BrandWeaver harmless for any claims stemming from Marketer’s refusal to pay for Records obtained by BrandWeaver consistent with this Agreement or any IO.
b. The Indemnified Parties shall promptly notify the Indemnitor in writing of any such claim or suit within ten (10) business days that the pleading, demand letter, or other notice is served upon Indemnified Parties, and shall cooperate in a reasonable manner with Indemnitor and at the Indemnitor’s expense, with respect to the defense and disposition of such claim. Indemnitor will have control of the defense or settlement; provided, however, that the Indemnitor shall not enter into any settlement that obligates the Indemnified Parties to take any action or incur any expense without such Indemnified Parties’ prior written consent, and further provided that the Indemnified Parties will have the right to be represented by independent counsel of their own choosing, at their own expense, in connection with such claim or suit. If the Indemnitor fails to defend such suit, then the Indemnified Parties, through counsel of their own choice, may, at the expense of the Indemnitor, conduct the defense of such claim, on the condition that the Indemnified Parties will not enter into any settlement that obligates the Indemnitor take any action or incur any expense without the Indemnitor’s prior written consent.
8. WARRANTY DISCLAIMER
BRANDWEAVER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE PLATFORM OR SERVICES WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MARKETER AGREES THAT THE RECORDS OR PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF SATISFACTION, QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY BRANDWEAVER, ITS EMPLOYEES, LICENSORS, LICENSEES OR AGENTS WILL CREATE A WARRANTY, NOR MAY MARKETER RELY ON ANY SUCH INFORMATION OR ADVICE. BRANDWEAVER DOES NOT WARRANT THAT THE PLATFORM OR SERVICES WILL MEET MARKETER’S REQUIREMENTS OR ENABLE MARKETER TO ATTAIN ITS OBJECTIVES. ADDITIONALLY, BRANDWEAVER DOES NOT MAKE ANY COMMITMENTS ABOUT THE ADS WITHIN THE PLATFORM, SOFTWARE, OR SERVICES, THE SUITABILITY OR BRAND SAFETY OF THE ADS, THE SPECIFIC FUNCTION OF THE SERVICES, OR THEIR PROFITABILITY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET MARKETER’S NEEDS. MARKETER ACKNOWLEDGES THAT THE PLATFORM AND RECORDS HAVE NOT BEEN DEVELOPED TO MEET ITS INDIVIDUAL REQUIREMENTS.
9. LIMITATION OF LIABILITY
a. Except as set forth in this Agreement, BrandWeaver disclaims all liability, whether based in contract, tort, negligence, strict liability or otherwise, for damages of any kinds (including without limitation direct, indirect, incidental, consequential, special, punitive or exemplary damages) in any way arising from: (i) the use or disclosure of any Record; (ii) any transaction or communication between Marketer and Source; (iii) the functionality or operation (or failure to function or operate) of the Platform or the website, even if BrandWeaver is expressly advised of the possibility of such damages; or (iv) the actions or omissions of a Source.
b. SUBJECT TO SECTION 10.c, EACH PARTY (INCLUDING EMPLOYEES AND AGENTS), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLY AND IRREVOCABLY WAIVE, AND NEITHER PARTY HAS OR WILL HAVE ANY LIABILITY IN RESPECT OF, ANY AND ALL CLAIMS FOR LOST PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE (NOT INCLUDING FEES AND PAYMENTS DUE TO BRANDWEAVER PURSUANT TO ANY ORDER), LOSS OF OR DAMAGE TO DATA, MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAILS, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, THAT IN ANY WAY RELATE TO THIS AGREEMENT, THE USE OR INABILITY TO USE THE PLATFORM, SERVICES, CAMPAIGNS, AND CREATIVE OR THAT RESULT FROM THE ACTS OR OMISSIONS OF ANY PARTY, INCLUDING WITHOUT LIMITATION BRANDWEAVER, MARKETER, SOURCES, END USERS, OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON BREACH OF AGREEMENT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT OR OTHERWISE, TO ANY PARTY IN PRIVITY TO THIS AGREEMENT OR TO ANY PARTY NOT IN PRIVITY , AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
c. BrandWeaver’s maximum aggregate liability arising out of this Agreement or any related agreement will not exceed the fees paid to BrandWeaver under the applicable Order in which the claim arose during the twelve (12) month period immediately preceding the aggrieved Party’s first assertion of any claim, against the other, regardless of whether any action or claim is based in contract, misrepresentation, warranty, indemnity, negligence, strict liability or other tort or otherwise.
d. Any amounts payable by an indemnified Party to a third party pursuant to a judgment or to a settlement agreement approved in writing by an indemnifying Party, liability for which falls within the indemnifying Party’s indemnification obligations under this Agreement, and all fees payable by Marketer under this Agreement, and any notification related costs, will be deemed direct damages for purposes of this Section 10.
e. Without limiting the foregoing, Marketer acknowledges and agrees that BrandWeaver will not be liable for any damages arising from or in connection with any transactions between Marketer and Source(s), or for any information appearing on Marketer’s or Sources’ websites.
10. CONFIDENTIALITY, DATA USAGE, PRIVACY AND LAWS
a. “Confidential Information” shall mean all proprietary information of the disclosing Party (“Discloser”), including information provided to the Discloser by third parties that the Discloser is obligated to keep confidential, whether provided before or after the Parties execute this Agreement. Unless excluded in writing by the Discloser, the Parties shall assume that any and all information disclosed, that is of a nature that a reasonable person would understand is confidential, is Confidential Information, whether in oral form, machine-readable form, written, digital, electronic or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing, Confidential Information includes inventions, product research and development, production data, product designs, specifications, descriptions and labels, discoveries, trade secrets, techniques, models, data, programs, processes, know-how, customer lists and contact information, personal information with respect to employees, customers or others, including but not limited to customer email addresses, client names, marketing plans, drawings, financial information, products, business plans, sales positioning strategies and communication strategies.
b. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of the Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the Discloser; (iv) was developed by employees or agents of Recipient independently of and without reference to any Confidential Information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either Party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law; provided, however, that: (a) the Recipient promptly notifies the Discloser of such disclosure requirement; (b) cooperates (at Discloser’s expense) in any lawful effort by Discloser to oppose or limit such disclosure; and (c) discloses only so much of such Confidential Information as, on advice of counsel, it is legally obligated to disclose.
c. Nothing herein shall prohibit BrandWeaver from using anonymous aggregated data for purposes of system performance, reporting and tuning, and for purposes of marketing, sales, business development and the benchmarking of the Platform as compared with other similar services.
d. Marketer acknowledges and agrees that: (i) all right, title and interest in and to the Platform and all derivatives thereof, and all intellectual property rights therein (including without limitation any and all patents, copyrights, trade secrets, rights, trademarks, trade names, moral rights and other proprietary rights embodied therein or associated therewith) and all modifications, changes, enhancements or additions thereto (whether initiated by the Marketer or otherwise) (collectively, “BrandWeaver IP”), all of which are protected by copyright, trade secret, and other proprietary rights and laws, shall at all times remain the proprietary property of BrandWeaver, or property of any third party licensors, as applicable; and (ii) Marketer in no way receives any right or interest in any of the foregoing other than the limited license granted hereunder to use them in accordance herewith. To the extent that Marketer acquires any rights in the BrandWeaver IP, Marketer assigns such rights to BrandWeaver and waives any moral rights it may have to the BrandWeaver IP to and in favor of BrandWeaver. The BrandWeaver name, logo, and the product names associated with the Platform are trademarks of BrandWeaver or third parties, and Marketer shall not remove or alter any BrandWeaver trademark or logo.
e. BrandWeaver and Marketer shall post on their respective websites their privacy policies and adhere to them. Failure by BrandWeaver or Marketer to continue to post a privacy policy or non-adherence to its own privacy policy is grounds for immediate cancellation of this Agreement and all corresponding Campaigns or IOs.
f. BrandWeaver may use sub-processors to perform portions of the services offered through the Platform. Marketer hereby authorizes BrandWeaver to use sub-processors to process personal data in accordance with this Agreement and any IOs. BrandWeaver add or replace its sub-processors by updating its privacy policy at https://brandweaver.ai/privacy-policy. If Marketer does not object to the changes within ten (10) days, Marketer is deemed to have consented to the new Sub-processors.
g. BrandWeaver and Marketer will comply with all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
h. Each Party agrees that monetary damages for breach of confidentiality under this Section may not be adequate and that the Discloser shall be further entitled to seek injunctive relief. Nothing contained in this Agreement shall be interpreted as granting rights by license or otherwise in any Confidential Information disclosed pursuant to this Agreement.
11. TERM AND TERMINATION
a. This Agreement shall be effective on either: (i) the latter signature date by the Parties below and shall remain in effect until it is terminated by either Party; or (ii) or as long as a valid IO exists referencing these terms.
b. This Agreement may be terminated by BrandWeaver at any time in BrandWeaver’s sole and absolute discretion, with or without cause if fraud is suspected. The termination will become effective immediately upon BrandWeaver’s transmission to Marketer in any form (telephone, facsimile, or electronic mail) of said termination. This Agreement may be terminated by either Party upon forty-eight hours’ notice in any form (telephone or electronic mail) to the other Party. However, any campaign built pursuant to an agreed upon IO will remain open and active until the terms of the IO have been fulfilled.
c. Immediately upon receipt or transmission of any such termination notice by or to BrandWeaver, BrandWeaver will stop managing Marketer’s account and will no longer have the authority to bind Marketer. This does not eliminate Marketer’s obligation to pay for Records generated: (i) within forty-eight (48) hours after notice of termination is received from Marketer; or (ii) after the termination of this Agreement pursuant to the agreed upon IO. Marketer agrees and acknowledges that Marketer is solely responsible to pay for all Records generated after the termination of this Agreement that were generated pursuant to an executed IO.
d. BrandWeaver may terminate this Agreement should Marketer become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12. NON-COMPETE AND NON-CIRCUMVENT
You agree not to directly solicit business from Sources revealed to Marketer by BrandWeaver through the disclosure of Confidential Information, that Marketer would not have discovered without BrandWeaver’s disclosure of Confidential Information. You further agree not to use reverse engineering or tracing of BrandWeaver Clients traffic for means to directly solicit BrandWeaver Clients away from BrandWeaver. This section does not apply to any BrandWeaver Clients with whom: (i) You had a pre-existing business relationship with (evidenced by dated written or electronic documentation); or (ii) You contract with outside the disclosure of Confidential Information.
13. INTEGRATION
This Agreement and the Insertion Order(s) referenced herein and agreed to by the Parties are the totality of this Agreement between the Parties
14. GENERAL PROVISIONS
a. Force Majeure: Neither Party will be liable for, or will be in breach of this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs (which shall include, without limitation, acts of God, fire, explosion, vandalism, internet outages not attributable to BrandWeaver, any act or policy of any app store, storm or other natural occurrences, any conflicting order, direction, action or request of a government (including, without limitation, state or local governments) or of any regulatory department, agency, commission, court, bureau, corporation or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, acts of terrorism, wars, strikes, lockouts, work stoppages or other such labor difficulties), the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of such event. Notwithstanding the foregoing, the Parties’ obligations to one another shall be excused and/or postponed during and only for the duration of the applicable force majeure event and shall resume as soon as practicable after the force majeure event has ended unless otherwise agreed to by the Parties. No force majeure event alleviates Marketer’s payment obligations.
b. Governing Law; Severability and Survivability: This Agreement shall be treated as though it were executed and performed in Denver, Colorado, and shall be governed by and construed in accordance with the laws of the State of Colorado (without regard to conflict of law principles). Marketer agrees that any legal action or proceeding between BrandWeaver and Marketer shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Denver, Colorado. The Parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them. Any cause of action or claim either Party may have with respect to this Agreement must be commenced within six (6) months after the claim or cause of action arises or such claim or cause of action shall be barred. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. If any provision of this Agreement conflicts with any other rule, regulation, or agreement, the terms and conditions of this Agreement shall govern; provided that nothing herein shall permit or require a party to act in contravention of any applicable law, rule or regulation. Should any provision of this Agreement be deemed invalid, illegal, or unenforceable, it shall not affect the enforceability of any other provision of this Agreement. Rather, the invalid, illegal, or unenforceable provision shall be modified to the extent necessary so that it is valid, legal, and enforceable. A Party’s failure to enforce any provision of this Agreement shall neither be deemed a waiver of such provision nor of their right to enforce such provision. Each Party’s rights under this Agreement shall survive any termination of this Agreement. No waiver of any term or condition is valid unless in writing and signed by authorized representatives of both Parties.
c. Relationship of the Parties: Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the Parties. Except as stated herein or in an Insertion Order, neither Party shall have authority to contract for or bind the other in any manner whatsoever. Before either Party can issue any press release or statement regarding the Parties relationship, it must be approved by both Parties. Electronic mail (email) will be sufficient approval of any press release statements.
d. Assignment: Neither Party may assign this Agreement without the written consent of the other Party which shall not be unreasonably withheld. However, BrandWeaver may assign this Agreement without Marketer’s consent to an Affiliate or successor to all or part of BrandWeaver’s business or assets.
e. Entire Agreement: This Agreement and the applicable IO constitutes the complete and exclusive statement of the Agreement between the Parties regarding the products and services defined herein. It may only be modified by a writing signed by the Party to be charged. This Agreement supersedes, and neither Party will be bound by, any “shrink wrap license” or any “disclaimers” or “click to approve” terms or conditions (“Online Terms & Conditions” or “Terms and Policies”) or any website which they use in connection with this Agreement, notwithstanding the fact that they may have to affirmatively accept such terms as a condition in order to access online services. Such Online Terms & Conditions are procedural only to establish the Parties in each other’s system such that the terms of each Party’s participation will be governed by this Agreement and payout information will be as specified in the applicable IO. Should there be a discrepancy between the terms of this Agreement and an IO; the terms of the IO will prevail.
f. ACKNOWLEDGMENT: THIS AGREEMENT SHALL BE CONSTRUED WITHOUT REGARD TO THE PARTY OR PARTIES RESPONSIBLE FOR THE PREPARATION OF THE SAME AND SHALL BE DEEMED AS PREPARED JOINTLY BY THE PARTIES HERETO. ANY AMBIGUITY OR UNCERTAINTY EXISTING HEREIN SHALL NOT BE INTERPRETED OR CONSTRUED AGAINST ANY PARTY HERETO. THE LANGUAGE IN THIS AGREEMENT SHALL BE INTERPRETED AS TO ITS FAIR MEANING AND NOT STRICTLY FOR OR AGAINST ANY PARTY. EACH OF THE PARTIES STATES THAT IT HAS READ EACH OF THE PARAGRAPHS OF THIS AGREEMENT, HAS HAD THE OPPORTUNITY TO AVAIL ITSELF OF LEGAL COUNSEL OF ITS CHOICE DURING NEGOTIATIONS OF THIS AGREEMENT, AND IS FREELY AND VOLUNTARILY ENTERING INTO THIS AGREEMENT UNDER NO DURESS AND THAT IT UNDERSTANDS THE SAME AND UNDERSTANDS THE LEGAL OBLIGATIONS THEREBY CREATED.
15. AGREEMENT TO CONDUCT BUSINESS ELECTRONICALLY
Each Party agrees to conduct business electronically with the other. Marketer acknowledges and agrees that by signing an IO with BrandWeaver, Marketer is confirming and acknowledging that Marketer has accepted this Agreement. Marketer hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.