AdMetrics Media Ltd, and Publisher (“Publisher”), enter into this Publisher Network Agreement ("Agreement") to establish the terms and conditions by which Publisher may enter the AdMetrics Media Network (the "Network") and market advertisements on behalf of AdMetrics Media Customers ("Advertisers" or "Customers"). AdMetrics Media and Publisher agree as follows:
1. Registration/Acceptance. To begin the enrollment process, you must submit a complete and accurate Publisher registration form ("Application"). AdMetrics Media will evaluate your Application and promptly notify you of your Application acceptance or rejection. AdMetrics Media reserves the right to reject your Application for any reason at any time, in its sole discretion. If any of the information supplied as part of your Application changes, at any time, you must immediately inform AdMetrics Media of same to reflect such changes in your Publisher profile. The information and services provided through the AdMetrics Media Network are proprietary in nature and, by enrolling, Publisher acknowledges that Publisher is not a competitor of AdMetrics Media and agrees not to share this information with any competitors of AdMetrics Media.
By submitting an Application, or otherwise accessing, using or participating in the AdMetrics Media Network, you hereby represent to AdMetrics Media that you are at least eighteen (18) years of age and otherwise capable of entering into and performing legal agreements and agree to follow and be bound by this Agreement. If you are submitting an Application on behalf of a business, you represent that you have the authority to bind that business, and your acceptance of this Agreement will be treated as acceptance by that business. In such an event, any reference to "Publisher" or "you" shall refer jointly to you, the Publisher, as well as the applicable underlying business.
2. Account. Upon AdMetrics Media's acceptance of your Application, Publisher must register on the Site and create a unique, password-protected account ("Account"). Publisher will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Publisher shall remain fully and solely responsible for any and all actions taken under Publisher’s Account, whether authorised by Publisher or not. Publisher must immediately notify AdMetrics Media of any unauthorised use of Publisher’s Account. Publisher is responsible for keeping its Account information current, complete and accurate, and Publisher acknowledges and agrees that AdMetrics Media will have no responsibility or liability, directly or indirectly, for failure to deliver notices or payments as a result of inaccurate Publisher Account information.
3. License. Upon AdMetrics Media's acceptance of your Application, AdMetrics Media shall grant to you a non-exclusive, non-transferable, revocable and limited license to: (a) participate in marketing campaigns offered by and through the AdMetrics Media Network (each, an "Ad Campaign"); and (b) use the Ads (as defined herein below) made available via the AdMetrics Media Network solely and exclusively in connection with your efforts to generate leads ("Leads"), clicks, sales/actions, applications or other compensable activities (collectively, "Actions") in connection with such Ad Campaigns. AdMetrics Media reserves the right to revoke the license granted under this Section 3 at any time, in its sole discretion. The applicable Actions, as well as the specific terms governing payments to Publisher ("Fees") and other Ad Campaign terms, are further described in the applicable Ad Campaign Terms ("Campaign Terms") made available to Publisher and incorporated herein by reference. The Campaign Terms shall supersede all contrary terms set forth in this Agreement, unless expressly set forth to the contrary. In addition, AdMetrics Media will provide Publisher with instructions for implementation of any software, technical specifications or guidelines for delivery of the Ads, which instructions form part of this Agreement and are incorporated herein by reference. You agree to comply with the technical specifications provided by AdMetrics Media to enable proper display of the Ads including, without limitation, by not modifying the HTML, JavaScript or other programming provided by AdMetrics Media in any way.
4. Ads. Subject to the restrictions contained herein, AdMetrics Media will provide Publisher with access to advertising materials provided by AdMetrics Media's advertising clients ("Advertisers") including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and other similar online media (collectively, "Ads"); provided, however, that AdMetrics Media may, from time to time, provide Ads to its proprietary products and/or services and, in such circumstances, AdMetrics Media shall be considered an Advertiser for purposes of this Agreement. AdMetrics Media may change or revise the Ads made available hereunder at any time, in its sole discretion, and Publisher agrees to use only the most recent versions of the Ads that are posted on the Site or otherwise made available to Publisher by AdMetrics Media. Publisher may not alter, modify or otherwise change the Ads in any manner, whatsoever including, but not limited to, through the creation of Iframes. Publsiher may only use Ads and other creative material that is supplied by AdMetrics Media in connection with marketing the applicable Ad Campaign. Use, or the attempted use, of any other marketing materials in connection with any Ad Campaign without obtaining AdMetrics Media's prior written approval in each instance will result in the immediate termination of this Agreement, without notice. As between Publisher and AdMetrics Media, AdMetrics Media retains full and sole ownership of all Ads and other information supplied to Publisher from time to time in connection with this Agreement. AdMetrics Media may terminate Publisher’s right to use the Ads at any time, in its sole discretion, and Publisher must immediately comply with this decision.
5. Placement. Publisher agrees that AdMetrics Media may, in its sole discretion, direct the placement of Ads. Unless such direction is given, and subject to the terms and conditions of this Agreement, the applicable Ad Campaign and all applicable laws, rules and regulations, Publisher may display the Ads: (a) as often and in as many areas of the websites owned, operated or controlled by Publisher or any of its Sub-Affiliates ("Publisher Websites"); and/or (b) in e-mail distributed to those e-mail addresses listed in the databases owned, operated or controlled by Publisher or any of its Sub-Affiliates ("Publisher Databases"). Notwithstanding the foregoing, Publisher must comply, immediately, with any and all requests by AdMetrics Media to modify, alter or otherwise change the positioning, placement, frequency and/or other editorial decisions related to the Ads. Publisher must immediately remove Ads upon receiving notice from AdMetrics Media or upon the termination or expiration of this Agreement or any applicable Ad Campaign.
6. Restrictions on Use. (a) Unless authorised by AdMetrics Media in writing in advance, Publisher may not, nor knowingly permit any Sub-Affiliate (as defined herein below) to, use third-party trademarks in any manner to direct traffic to any Publisher Websites including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name of any third party, or any derivative of any such trademark, service mark or brand name. Any and all Internet search engine keywords purchased by Publisher and/or its Sub-Affiliates in connection with marketing the Ads via Internet search engines ("Search Campaigns") must have some nexus to the Ads so as to not be misleading. Unless authorised by AdMetrics Media in writing in advance, Publisher and/or its Sub-Affiliates may not use social media profiles (e.g., MySpace, Facebook) to advertise or distribute the Ads. Search Campaigns may not: (i) utilise any copyright, trademark, trade secret or intellectual property right of any third party without obtaining the prior written consent of the applicable third party; (ii) use AdMetrics Media or its Advertisers' names (including any abbreviation or misspellings thereof) or any trademark, trade name, service mark, domain name, logo or other AdMetrics Media-identifying or Advertiser-identifying information unless otherwise directed by AdMetrics Media; (iii) utilise any keywords that are defamatory, trade libelous, pornographic or obscene; (iv) violate or breach any duty toward, or rights of any persons or entity including, without limitation, rights of privacy and publicity; or (v) otherwise be deceptive or misleading.
(b) Publisher may not allow the Ads to be placed on any non-Publisher Websites without obtaining the prior express written consent of AdMetrics Media. Publisher must place or use the Ads only with the intention of delivering valid Actions. Publisher may not, nor knowingly permit any person to, activate the Ads or inflate the amount of Actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, Iframes, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an Action.
(c) Publisher agrees and acknowledges that it shall not, nor shall it permit any Sub-Affiliates to: (i) use incentivised offers, create the appearance of incentivising offers, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Actions, or otherwise attempt to induce Internet users to click on any of the Ads through use of any other incentives, without obtaining the prior written approval of AdMetrics Media; (ii) place any statement in close proximity to the Ads requesting that e-mail recipients or Internet users "click" on or fill-out the applicable Ad (e.g., "Please click here"); (iii) place misleading statements in close proximity to the Ads; (iv) take control of a user's computer by delivering Ads or other material that a user of a computer cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (v) install or execute on another's computer one or more additional software program(s) without consent of the user (in addition, Publisher must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the user of the computer); or (vi) distribute spyware or other similar harmful software. AdMetrics Media will not accept Actions generated from public or open proxy servers, from IP addresses that have bot activity or from pay-per-view or pay-per-surf programs. AdMetrics Media reserves the right to demand detailed information regarding the source locations of any and all Actions.
7. Ad Codes. Unless otherwise stated in writing by AdMetrics Media, each Ad made available to Publisher in connection with any Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by AdMetrics Media and embedded in all such Ads ("Ad Codes"). Affiliate will not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Ad Codes or other technology and/or methodology required or made available by AdMetrics Media to be used in connection with the Ads.
8. Term/Termination. The term of this Agreement will begin upon AdMetrics Media's written acceptance of Publisher’s submitted Application (with e-mail sufficing) and will end when terminated by either party as set forth herein. Publisher may terminate this Agreement at any time upon three (3) days' prior written notice to AdMetrics Media. AdMetrics Media may terminate Publisher’s participation in the AdMetrics Media Network, any Ad Campaign and/or this Agreement immediately upon notice at any time, in AdMetrics Media's sole discretion. Upon termination of this Agreement for any reason: (a) Publisher shall immediately cease to use and remove from the Publisher Websites any and all Ads and/or other materials made available to Publisher in connection with Publisher’s participation in the AdMetrics Media Network; (b) Publisher shall immediately cease transmitting any and all e-mail in connection with any Ad Campaign; (c) any and all licenses and rights granted to Publisher in connection with this Agreement shall immediately cease and terminate; and (d) any and all Confidential Information (as defined herein below), Ads or other proprietary information of AdMetrics Media that is in Publisher’s possession or control must be immediately returned or destroyed. If requested, Publisher will certify in a writing signed by Publisher or an authorised officer of Publisher that all such confidential and/or proprietary information has been returned or destroyed.
9. Payments. (a) General. AdMetrics Media shall pay Fees according to the applicable Campaign Terms. AdMetrics Media will not pay any Fees to Publisher: (i) unless AdMetrics Media has documentation to support such Fees within the AdMetrics Media database and Data (as defined herein below); (ii) for Actions that occur before Publisher is accepted into the AdMetrics Media Network, or after termination of this Agreement or any applicable Ad Campaign; (iii) for which AdMetrics Media has not received the corresponding payment from the applicable Advertiser on whose behalf the subject Action was generated; (iv) where the applicable Action involves the generation of Leads, and the applicable Leads delivered by Publisher are either fraudulently obtained or comprised of consumers that have previously registered for, opted-in to and/or are already a member and/or an applicable customer of the applicable Advertiser, as the case may be; and/or (v) where the subject e-mail recipient associated with an Action did not opt-in to receiving e-mail marketing from Publisher. AdMetrics Media reserves the right to withhold and/or cancel Fee payments due and owing to Publisher at any time, in its sole discretion, when AdMetrics Media believes that Publisher is in breach of any term of this Agreement. Publisher shall be responsible for paying any and all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Publisher’s participation in the AdMetrics Media Network. AdMetrics Media may require Publisher to provide a W-9, or similar tax identification information, as a condition precedent to receiving any Fee payments. Without limiting the foregoing, Publisher agrees and acknowledges that it shall be fully responsible for any and all taxes, and related fees, costs and penalties incurred by AdMetrics Media and/or any of its Advertisers.
(b) Schedule. AdMetrics Media shall pay Fees based on the Actions recorded by the Ad Codes approximately thirty (30) days after the last day of a given calendar month for Fees earned during the prior month, provided that they exceed $50. Fees under $50 will attributed to the next calender month payment. All determinations made by AdMetrics Media in connection with the Ad Codes, Actions and any associated Fees due to Publisher shall be final and binding on Publisher.
(c) Data. AdMetrics Media, in its sole discretion, may withhold any and all payments due and owing to Publisher until such time as the applicable Advertiser has paid AdMetrics Media for the associated Ad Campaign. Please be advised that AdMetrics Media's services do not involve investigating or resolving any claim or dispute involving Publisher and any Advertiser or other third party. AdMetrics Media shall compile, calculate and post on the Site data derived from the Ad Codes, and otherwise, that AdMetrics Media has used to determine Fees due to Publisher (collectively, "Data"). Any questions or disputes regarding the Data must be submitted in writing to AdMetrics Media within five (5) business days of the date that the Data is posted on the Site (or otherwise made available to Publisher), or the information contained therein will be deemed accurate and accepted by Publisher. AdMetrics Media will investigate and resolve any Data-related questions or disputes in its sole discretion. If, due to any impairment of the Ad Codes or any other reason, AdMetrics Media is unable or fails to provide Publisher with accurate and/or complete Data, AdMetrics Media shall calculate Actions ("Projected Actions"), based upon: (i) Publisher’s average monthly Actions recorded by AdMetrics Media for the applicable Ad Campaign, prorated for any shorter or longer period of time, where Data is available to calculate a monthly average; or (ii) such amount that AdMetrics Media reasonably determines is due and owing, in its sole discretion, where the Data needed to calculate Publisher’s average monthly Actions is unavailable.
10. Sub-Affiliates. For purposes of this Agreement, any business partners or associates of Publisher that participate in or perform any activities for Publisher in connection with Publisher’s participation in the AdMetrics Media Network shall be deemed to be "Sub-Affiliates." Any and all Sub-Affiliates must be pre-approved by AdMetrics Media. AdMetrics Media reserves the right to withhold or refuse approval of any Sub-Affiliate for any reason whatsoever, and AdMetrics Media may revoke its approval of a Sub-Affiliate at any time. All Sub-Affiliates must meet the same criteria for approval and must comply with the same terms and conditions as required of Publisher under this Agreement. Publisher is responsible for any and all acts and/or omissions of its Sub-Affiliates. Affiliate shall fully and unconditionally indemnify and hold AdMetrics Media harmless from and against any and all acts and/or omissions of any Sub-Affiliate.
11. Suppression List. With respect to any Suppression List generated in connection with, or made available by and through the AdMetrics Media Network, Publisher agrees to: (a) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; (b) regularly use such Suppression List to remove any and all e-mail addresses or domains contained therein from future commercial e-mail transmissions; (c) not use the Suppression List for purposes of e-mail marketing (or provide the Suppression List to any third party for said purposes) and not send, or cause to be sent, any commercial e-mail messages to an e-mail address or domain appearing on any Suppression List; (d) not use any Suppression List for purposes of e-mail appending in any manner whatsoever; (e) hold any Suppression List made available by AdMetrics Media in trust and confidence and use same solely for the suppression purposes set forth herein; and (f) not retain a copy of any Suppression List made available by AdMetrics Media following termination of this Agreement. Publisher shall upload its own list of suppressed e-mail addresses to the applicable area of the Site ("Suppression List Upload Section"), if such a Suppression List Upload Section is provided by AdMetrics Media. If the Suppression List Upload Section is provided by AdMetrics Media, and no such e-mail addresses are supplied by Publisher, AdMetrics Media may conclude that no such addresses exist.
12. Audit. Publisher agrees that at all times during the term of this Agreement it shall maintain accurate books and records relating to its use of the Ads and the Suppression List. Publisher agrees that AdMetrics Media, or any designee of AdMetrics Media that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement, and for three (3) months thereafter, to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Publisher at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at AdMetrics Media's sole cost and expense and shall be strictly limited to those books and records that specifically relate to Publisher’s use of the Ads and the Suppression List. Notwithstanding the foregoing, if AdMetrics Media uncovers any material misconduct associated with Publisher’s use of the Ads and/or the Suppression List, then the audit shall be at the sole cost and expense of Publisher.
13. Disclaimer/Limitation of Liability. THE ADMETRICS MEDIA NETWORK, SITE, DATA, SUPPRESSION LIST, AD CODES AND ADS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE ADMETRICS MEDIA NETWORK, SITE, DATA, SUPPRESSION LIST, AD CODES AND ADS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ADMETRICS MEDIA HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE ADMETRICS MEDIA NETWORK, SITE, DATA, SUPPRESSION LIST, AD CODES AND/OR ADS. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, ADMETRICS MEDIA IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE AGREEMENT BETWEEN ADMETRICS MEDIA AND PUBLISHER. THE ADMETRICS MEDIA NETWORK, SITE, DATA, SUPPRESSION LIST, AD CODES AND ADS WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. ADMETRICS MEDIA MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE ADMETRICS MEDIA NETWORK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM ADMETRICS MEDIA THROUGH THE ADMETRICS MEDIA NETWORK, SITE, DATA, SUPPRESSION LIST, AD CODES OR ADS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE ADMETRICS MEDIA NETWORK, SITE, DATA, SUPPRESSION LIST, AD CODES AND ADS IS EXPRESSLY DISCLAIMED. PUBLISHER UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE ADMETRICS MEDIA NETWORK AND ACCESS AND/OR USE OF SITE AND ADS IS SOLELY AT PUBLISHER’S OWN DISCRETION AND AT PUBLISHER’S OWN RISK. PUBLISHER IS ALSO SOLELY RESPONSIBLE FOR ITS USE, OR ALLEGED USE, OF THE ADMETRICS MEDIA NETWORK, SITE, DATA, SUPPRESSION LIST, AD CODES AND ADS. UNDER NO CIRCUMSTANCES SHALL ADMETRICS MEDIA BE LIABLE TO PUBLISHER OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH PUBLISHER’S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM PUBLISHER’S PARTICIPATION IN THE ADMETRICS MEDIA NETWORK. ADMETRICS MEDIA'S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE MONEY PAID BY ADMETRICS MEDIA TO PUBLISHER DURING THE PRECEDING THREE (3) MONTHS.
14. Proprietary Rights. The organisation, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Site, AdMetrics Media Network, Ads, Ad Codes, Data and Suppression List made available by AdMetrics Media are protected under applicable copyright, trademark and other proprietary and intellectual property rights. The usage, copying, redistribution and/or publication by Publisher of any part of the Site, AdMetrics Media Network, Ads, Ad Codes, Data and Suppression List made available by AdMetrics Media, other than as contemplated hereunder, is strictly prohibited. Publisher does not acquire any ownership rights to the Site, AdMetrics Media Network, Ads, Ad Codes, Data and Suppression List made available by AdMetrics Media. The availability of the Site, Network, Ads, Ad Codes, Data and Suppression List made available by AdMetrics Media does not constitute a waiver of any rights related thereto.
15. Publicity. AdMetrics Media may use Publisher’s personal information in any manner consistent with the AdMetrics Media Privacy Policy, which is hereby incorporated into, and made part of, this Agreement. For additional information regarding AdMetrics Media's usage of Publisher information collected, please refer to the AdMetrics Media Privacy Policy located at the Site. Publisher shall not create, publish, distribute or permit any written material that makes reference to AdMetrics Media without first submitting such material to AdMetrics Media and receiving AdMetrics Media's prior written consent, which AdMetrics Media may withhold in its sole discretion.
16. Consumer Data. (a) As a Publisher, you will permit and enable the placement of AdMetrics Media Ad Codes, and other Ad tags and cookies on the Publisher Websites, and will make the applicable disclosures associated with same in your Publisher Privacy Policies. You acknowledge and agree that AdMetrics Media and its Advertisers will collect, use and share general, non-personally identifiable data (including, without limitation, user IP addresses and browser types, referring pages, user interaction information and Ad identification information) in connection with Ads displayed on Publisher Websites ("General Data"). In addition, you acknowledge and agree that AdMetrics Media and its Advertisers may access, use and share end-user personally identifiable information collected on, or received by, Publisher Websites displaying Ads, and other Ad distribution activities conducted by Publisher ("Profile Data"). You agree and acknowledge that AdMetrics Media and Advertisers may collect, use and share General Data from your Publisher Websites, and you will make the applicable disclosures in your Publisher Privacy Policies.
(b) You represent and warrant that You have the rights and permissions necessary to grant, and do hereby grant, to AdMetrics Media and its Advertisers an irrevocable, perpetual, non-exclusive, transferable and sublicensable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute any and all General Data and Profile Data generated hereunder for any purpose, commercial, advertising or otherwise.
17. Confidentiality. For purposes of this Agreement, "Confidential Information" shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (a) a party's business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, processes, methodologies, trade secrets, customer and vendor lists, personally identifiable customer information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (b) the material terms of this Agreement; (c) any information marked or designated by the Disclosing Party as confidential; and (d) with respect to AdMetrics Media, any General Data and Profile Data. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorised by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligations hereunder; and (ii) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof: (A) is generally available to or known to the public through no wrongful act of the receiving party; (B) was independently developed by the Receiving Party without the use of Confidential Information; or (C) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of the confidentiality provisions contained herein may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond. This Section 17 shall survive any termination of this Agreement for a period of five (5) years.
18. Indemnification. Publisher agrees to indemnify, defend and hold harmless AdMetrics Media, its Advertisers and each of their respective parents, Publishers and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and solicitors, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable solicitor’s fees, court costs and/or settlement costs) arising from or related to: (a) Publisher’s breach of this Agreement and/or any representation or warranty contained herein; (b) the Publisher Websites, Publisher Databases and/or Publisher’s marketing practices; (c) any non-Ad Campaign related content, goods or services offered, sold or otherwise made available by Publisher on and through the Publisher’s Websites, Publisher Databases or otherwise; (d) any claim that AdMetrics Media is obligated to pay any taxes in connection with Publisher’s participation in the AdMetrics Media Network; (e) any act or omission, whatsoever, of any Sub-Affiliate; and/or (f) Publisher’s participation in the AdMetrics Media Network, in any manner whatsoever. AdMetrics Media reserves the right to participate in the defence at its sole expense. Publisher may not settle any claim without the prior written approval of AdMetrics Media. Publisher shall immediately notify AdMetrics Media if Publisher receives notice of any complaints, inquiries or investigations related to the Publisher’s Websites, Publisher Databases, any Sub-Affiliate or any other violations in connection with Publisher’s, or any Sub-Affiliate's, business whether or not Publisher is obligated to indemnify AdMetrics Media for such claim hereunder.
19. Force Majeure. Neither party will be liable, or be considered to be in breach of this Agreement, on account of such party's delay or failure to perform as required under the terms of this Agreement 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 (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labour difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimise the impact of any such event.
20. Jurisdiction. This Publisher Agreement shall be for the benefit of and be binding upon the parties to this Publisher Agreement and their successors and assigns. In the event of any dispute arising out of this Agreement, the laws of the United Kingdom shall govern.
