Publisher Terms and conditions
PLEASE READ THIS PUBLISHERS AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SERVICES OFFERED BY CPMGO Ltd. ("COMPANY"). BY CLICKING ON THE "I ACCEPT" BUTTON BELOW, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "CANCEL" BUTTON AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES OFFERED BY COMPANY.
The Web pages available at www.cpmgo.com, and all linked pages unless indicated otherwise ("Site"), are owned and operated by Company, and are accessed by you ("Publisher") under the following terms and conditions:
1. ACCESS TO THE SERVICES.
Subject to the terms and conditions of this Agreement, Company may offer to provide certain services that relate to facilitating the purchase and sale of Internet advertisements by bringing together Internet advertisers and Publishers, as described more fully on the Site ("Services"). Company may change, suspend or discontinue the Services (or Publisher's access thereto) at any time, including but not limited to the availability of any feature or advertisement without notice or liability. Company reserves the right, at its discretion, to refuse to allow access to the Services to any applicant at any time. Company also reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the Site, or by sending Publisher a notice via email or postal mail. Use of the Services by Publisher following such notification constitutes Publisher's acceptance of the modified terms and conditions. Publisher certifies to Company that if Publisher is an individual (i.e., not a corporation) Publisher is at least 18 years of age and is capable of forming legally binding contract under the applicable law. Publisher also certifies that it is legally permitted to use the Services and access the Site, and takes full responsibility for the selection and use of the Services.
Publisher agrees to use the facilities provided on the Site for all and any communications regarding any matter arising or connected to the Publishers use of the Service. Publisher further agrees to contact Company if any of the advertisements result in errors, error pages or dead links at any time. Company reserves the right to contact Publisher in order to evaluate compliance with this Agreement.
"Content" means all materials displayed or made accessible through the Site or Services and includes but is not limited to; any content published by a Publisher, any advertisements or other content submitted by any advertiser, text, graphics, articles, photographs, images, illustrations, audio clips and video clips. The Site and its Contents are intended solely for the use of Publishers and advertisers and may only be used in accordance with the terms of this Agreement in connection with authorized use of the Services.
Publisher warrants, represents and agrees that it will not contribute, submit or make available through the Services, or use the Services in connection with, any Content that is infringing, libellous, defamatory, obscene, abusive, offensive or otherwise violates any law or right of any third party. Publisher shall not, and shall not authorize or encourage any third party to
(i) generate fraudulent impressions of or fraudulent clicks on any advertisement, including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimization services and/or software;
(ii) edit, modify, filter or change the order of the information contained in any advertisement, or remove, obscure or minimize any advertisement in any way;
(iii) redirect an end user away from any Web page accessed by an end user after clicking on any part of an advertisement ("Advertiser Page"), provide a version of the Advertiser Page different from the page an end user would access by going directly to the Advertiser Page or intersperse any content between the advertisement and the Advertiser Page; or (iv) display any advertisements on any error page, registration or "thank you" page (e.g. a page that thanks a user after he/she has registered with the applicable website). Company reserves the right to remove any Content from the Site at any time, or to terminate Publisher's right to use the Services or access the Site, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that Publisher may have breached the terms of this paragraph), or for no reason at all, subject to the provisions of paragraph 14 (Termination). Publisher is responsible for all of its activity in connection with the Services. Any fraudulent, abusive, or otherwise illegal activity is grounds for termination of Publisher's right to use the Services or to access the Site. Use of the Site or Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including materials that are deemed threatening or obscene, or engage in any kind of illegal activity is expressly prohibited. Publisher will not run Maillist, Listserv, any form of auto-responder, or "spam" on the Site, or any processes that run or are activated while the Publisher is not logged in.
* PUBLISHER ACKNOWLEDGES AND AGREES THAT COMPANY HAS NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO PUBLISHER AND THAT COMPANY HAS NO CONTROL OVER, AND NO DUTY TO TAKE ANY ACTION REGARDING: WHICH USERS GAINS ACCESS TO THE SITE OR SERVICES; WHAT CONTENT PUBLISHER ACCESSES OR RECEIVES VIA THE SITE OR SERVICES; WHAT CONTENT OTHER PUBLISHERS MAY MAKE AVAILABLE, PUBLISH OR PROMOTE IN CONNECTION WITH THE SERVICES; WHAT EFFECTS ANY CONTENT MAY HAVE ON PUBLISHER OR ITS USERS OR CUSTOMERS; HOW PUBLISHER OR ITS USERS OR CUSTOMERS MAY INTERPRET, VIEW OR USE THE CONTENT; WHAT ACTIONS PUBLISHER OR ITS USERS OR CUSTOMERS MAY TAKE AS A RESULT OF HAVING BEEN EXPOSED TO THE CONTENT, OR WHETHER CONTENT IS BEING DISPLAYED PROPERLY IN CONNECTION WITH THE SERVICES.
* FURTHER, PUBLISHER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT COMPANY HAS NO CONTROL OVER (AND IS MERELY A PASSIVE CONDUIT WITH RESPECT TO) ANY CONTENT THAT MAY BE SUBMITTED OR PUBLISHED BY ANY ADVERTISER, AND THAT PUBLISHER IS SOLELY RESPONSIBLE (AND ASSUMES ALL LIABILITY AND RISK) FOR DETERMINING WHETHER OR NOT SUCH CONTENT IS APPROPRIATE OR ACCEPTABLE TO PUBLISHER, AND* PUBLISHER RELEASES COMPANY FROM ALL LIABILITY IN ANY WAY RELATING TO PUBLISHER'S ACQUISITION (OR FAILURE TO ACQUIRE), PROVISION, USE OR OTHER ACTIVITY WITH RESPECT TO CONTENT IN CONNECTION WITH THE SITE OR SERVICES. THE SITE MAY CONTAIN, OR DIRECT PUBLISHER TO SITES CONTAINING, INFORMATION THAT SOME PEOPLE MAY FIND OFFENSIVE OR INAPPROPRIATE. COMPANY MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SITE OR SERVICES, AND COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SITE OR SERVICES. COMPANY MAKES NO GUARANTEE REGARDING THE LEVEL OF IMPRESSIONS OF OR CLICKS ON ANY ADVERTISEMENT, THE TIMING OF DELIVERY OF SUCH IMPRESSIONS AND/OR CLICKS, OR THE AMOUNT OF ANY PAYMENT TO BE MADE TO PUBLISHER IN CONNECTION WITH THE SERVICES.
* THE SERVICES, CONTENT AND SITE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES, REPRESENTATION AND GUARANTEES OF ANY KIND (UNLESS SUCH REPRESENTATION WAS MADE FRAUDULENTLY), EITHER EXPRESS OR IMPLIED. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY ADVERTISING CAMPAIGN, AND PUBLISHER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
* COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON OR THROUGH THE SITE, SERVICES OR ANY WEBSITE LINKED TO THE SITE.
Company will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Company's equipment, transmitted over networks accessed by the Site, or otherwise connected with Publisher's use of the Services.
7. LAW, JURISDICTION AND DISPUTES
This Agreement shall be governed by and construed in accordance with English law, and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts. Notwithstanding the foregoing, Company may commence an action in any court in any jurisdiction.
8. REGISTRATION AND SECURITY.
As a condition to using Services, Publisher may be required to register with Company and select a password and Publisher name ("Company User ID"). Publisher shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a material breach of this Agreement, which may result in immediate termination of Publisher's account. Publisher may not (i) select or use as a Company User ID a name of another person with the intent to impersonate that person; (ii) use as a Company User ID a name subject to any rights of a person other than Publisher without appropriate authorization. Company reserves the right to refuse registration of, or cancel a Company User ID in its discretion. Publisher shall be responsible for maintaining the confidentiality of Publisher's Company password.
9.1 Publisher shall indemnify, defend and hold harmless Company, its parents, subsidiaries, affiliates, officers and employees, against all liabilities, claims and expenses that may arise from;
i. a breach of this Agreement by Publisher,
ii. Publisher's access to the Site,
iii. Publishers use of the Services, or
iv. any third party using the Publisher's account.
10. LIMITATION OF LIABILITY.
10.1 This clause 10 prevails over all other clauses and sets forth the entire liability of the Company. "Liability" means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including, without limitation, liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to "this Agreement" shall be deemed to include any collateral contract). Nothing in this Agreement shall exclude the Companies liability for (i) the tort of deceit; (ii) death or personal injury caused by its Breach of Duty; (iii) any breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982; (iv) fraudulent misrepresentation or (v) any other Liability which cannot be excluded or limited by applicable law.
10.2 Save as provided in Clause 10.1 but subject to Clause 10.3, Company does not accept and hereby excludes any Liability for loss of or damage to Publisher's tangible property other than that caused by Company's Breach of Duty.
10.3 Save as provided in Clause 10.1 but subject to Clauses 10.22 and 05, Company's Liability for loss of or damage to Publisher's tangible property caused by Company, its employees, subcontractors or agents acting within the course of their employment during the performance of this Agreement, shall not exceed £100. Neither corruption of data nor loss of data shall constitute physical damage to property for the purposes of this Clause 10.3
10.4 Save as provided in Clauses 10.1 and 10.2, Company does not accept and hereby excludes any Liability for Breach of Duty other than any such Liability arising pursuant to the terms of this Agreement.
10.5 Save as provided in Clause 10.1, Company shall have no Liability for:
i. loss of revenue;
ii. loss of actual or anticipated profits;
iii. loss of contracts;
iv. loss of the use of money;
v. loss of anticipated savings;
vi. loss of business;
vii. loss of opportunity;
viii. loss of goodwill;
ix. loss of reputation;
x. loss of, damage to or corruption of data; or
xi. any indirect or consequential loss;
and such Liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, Clauses 10.5(i) to 10.5(x) apply whether such losses are direct, indirect, consequential or otherwise.
10.6 Save as provided in Clause 10.1, the total Liability of Company to Publisher or any third party shall in no circumstances exceed, in aggregate, a sum equal to the greatest of: a) £1,000; or b) 110% of the aggregate Payments paid by Company to Publisher in the 12 months preceding any cause of action arising; or c) 110% of the Payments payable by Company to Publisher in the 12 months preceding any cause of action arising.
10.7 The limitation of Liability set out in clause 10.6 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
10.8 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this contract and no term of this contract shall be enforceable by any third party
11. FEES AND PAYMENT.
11.1 Company reserves the right to change its fees and to institute new charges at any time, upon prior notice to Publisher, which may be sent by email or posted on the Site. Publisher shall receive as payment a percentage of the sale price of advertisements displayed in connection with Publisher's website or retargeted audience as determined by Company for Publisher's use of the Services. No payment will be sent if Publisher's earned balance is less than Publisher's Minimum Cheque Amount for a particular month period. If Company does not receive an invoice from Publisher by the end of six (6) months after the end of any relevant payment period (the "Last Chance Invoice Date") in respect of the full payment due in respect of that payment period, then to the extent of the payment for which Company has not been so invoiced in respect of that payment period ("Waived Payment"), from the Last Chance Invoice Date, Partner shall be deemed to have waived irrevocably the Waived Payment and Company shall become absolutely entitled to retain the Waived Payment from the Last Chance Invoice Date as if the same had never been the subject of any obligation by Company to pay the Waived Payment to any other party (and for the avoidance of doubt, Company may then recognize the revenue in respect of the Waived Payment). For the avoidance of doubt,
Company shall be under no obligation at any time to remind or prompt Partner to send any invoice. In addition Publisher agrees that:
(i) any payments that may become due to Publisher (as described on the Site) are specifically conditioned upon Company's receipt of full payment from the applicable advertiser, and that any such payments do not become due to Publisher until 14 days after Company's receipt of full payment from the applicable advertiser,
(ii) any advertiser or agency discounts, costs or fees that are incurred by the advertiser in using the Services including but not limited to advertisement serving fees and advertisement serving discounts will be at the Publisher's expense, and
(iii) if Company does not receive the applicable payment in full from any such advertiser, Company shall have no liability or responsibility to
Publisher (and Publisher hereby releases Company) with respect thereto. If Publisher disputes any payment made in connection with the Services, Publisher must notify Company in writing within thirty (30) days of any such payment. Failure to so notify Company shall result in the waiver by Publisher of any claims related to such disputed payment. Payment shall be calculated solely based on records maintained by Company. No other measurements or statistics of any kind shall be accepted by Company or have any effect under this Agreement. Company shall not be liable for any payment based on:
(iii)(i) any fraudulent impressions generated by any person, robot, automated program or similar device or for fraudulent impressions similarly generated on any advertisements, as reasonably determined by Company;
(iii)(iii) impressions commingled with a significant number of fraudulent impressions or fraudulent clicks described in
(iii)(i) above, or as a result of another breach of this Agreement by Publisher for any applicable pay period. Company reserves the right to withhold payment or charge back Publisher's account due to any of the foregoing or any breach of this Agreement by Publisher. In addition, if Publisher is past due on any payment to Company in connection with the Services, Company reserves the right to withhold payment until all outstanding payments have been made. To ensure proper payment, Publisher is solely responsible for providing and maintaining accurate contact and payment information associated with Publisher's account and Company User ID.
12.1 "Confidential Information" means in relation to either party, information (whether in oral, written or electronic form) belonging or relating to that party, its business affairs or activities which is not in the public domain and which: (i) either party has marked as confidential or proprietary, (ii) either party, orally or in writing has advised the other party is of a confidential nature or (iii) due to its character or nature, a reasonable person in a like position to the recipient of such information under this Agreement, and under like circumstances, would treat as confidential and, for the avoidance of doubt, "Confidential Information" shall include but is not limited to the terms of this Agreement, information about the Services and technical formulae, specifications and processes, guidelines, product designs, technology, programming audit results, click through rates and other statistics relating to the Services, sales, cost and other unpublished financial information, product and business plans, projections, and marketing and promotional data.
12.2 During the term of this Agreement and for two years thereafter, each party shall maintain the confidentiality of the other party's Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other party's Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.
12.3 Each party undertakes to disclose the other party's Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement and to procure that such persons are made aware of and agree to observe the obligations in this Clause 12.
12.4 Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or other loss of the other party's Confidential Information immediately upon becoming aware of the same.
12.5 The provisions of this Clause 12 shall not apply to information which:
12.5.1 is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
12.5.2 is lawfully received from a third party free of any obligation of confidence at the time of its disclosure; or
12.5.3 is demonstrably independently developed by the recipient, its officers, employees, agents or contractors.
12.6 In the event a party is required by law, stock exchange, regulatory body, court or governmental order to disclose Confidential Information, then the party so required shall, prior to any disclosure, notify the other party and at that other party's request and cost, assist that other party in opposing any such disclosure. Publisher shall not make any public statement, issue any press release or make or release any other type of announcement or statement relating to the existence of this Agreement without the prior written approval of Company.
12.7 Each party shall administer and protect the other party's Confidential Information with at least the same degree of care used to administer and protect its own Confidential Information, and in any event, with no less than reasonable care.
12.8 Without prejudice to the terms of this Clause 12, Publisher shall maintain the confidentiality of the terms of the Publisher Agreement and the Publisher Reporting Area including but not limited to revenue, clicks, click count, CPCs, CPMs, impressions, advertiser identity, and any and all reports or information within the Publisher Reporting Area and shall not permit any third party to use the Services or gain access to or use the Publisher Reporting Area or any or all reports or information within the Publisher Reporting Area. Publisher shall immediately notify Company of any unauthorised access to or use of the same or any other breach of security (real or which Publisher should reasonably suspect). Publisher is solely responsible for the actions of anyone using the Publisher Reporting Area or any or all reports or information within the Publisher Reporting Area.
13. INTELLECTUAL PROPERTY RIGHTS.
13.1.1 Publisher hereby grants Company a non-exclusive, non-transferable, non-sub-licensable, royalty-free worldwide license to use the Publisher's Marks ("Marks" means trade marks, service marks, logos, domain names, URLs, graphics, buttons, banners, and business names, currently in existence or use or which either party may develop), on Company's websites and in Company's brochures and media packs, at trade shows, in corporate literature, in press releases and in public relations materials (and in all such cases whether the same comprise existing or future media, including the Internet, email, print, terrestrial television, cable television, digital and analogue television, Web television, cinema, on personal digital assistants and otherwise).
13.2 Company may not use Publisher's Marks other than as set out in Clause 13.1, without Publisher's prior written consent. Company agrees and acknowledges that all rights, title and interest whatsoever in Publisher's Marks are owned exclusively by Publisher and its licensors, and that no right is granted to Company other than the licence granted in Clause 13.1.
13.3 Company may retain and use for its own purposes all information Publisher provides, including but not limited to Site demographics and contact and billing information. Publisher agrees that Company may transfer and disclose to third parties personally identifiable information about Publisher for the purpose of approving and enabling Publisher's participation in the Services. Company disclaims all responsibility, and will not be liable to Publisher, however, for any disclosure of that information by any such third party. Company may share aggregate (i.e., not personally identifiable) information about Publisher with advertisers, business partners, sponsors, and other third parties. In addition, Publisher grants Company the right to access, index, and cache Publisher's website, or any portion thereof, including by automated means including Web spiders or crawlers.
The Company may terminate the Services at any time by notifying the other party by any means. Company may also terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability (subject always to clause 10), if Publisher breaches any of the terms or conditions of this Agreement. Any fees paid hereunder are non-refundable and non-cancellable. Upon termination of the Publisher's account, Publisher's right to use the Services will immediately cease and Publisher will remove all Company HTML code from Publisher's websites. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, warranty disclaimers, and limitations of liability. The Publisher may terminate the Services at any time by notifying the Company by any means. However should the Publisher wish to terminate or temporarily pause a site specific campaign or a network campaign (" Campaign") whilst the Campaign(s) is live, the Publisher must contact the Company in writing and it will be in the Company's sole discretion whether the Publisher can terminate the Campaign. If the Publisher terminates a Campaign without the Company's consent, Company shall have the right to withhold all monies and payments owed to Publisher, remove Publisher from the Service and ban Publisher from using the Services again
15. REPRESENTATIONS AND WARRANTIES.
Publisher represents and warrants that;
15.1 Publisher is the owner of each website Publisher designates in connection with the use of Services or that Publisher is legally authorized to act on behalf of the owner of such website for the purposes of this Agreement;
15.2 Publisher has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Publisher hereunder;
15.3 each of the Publisher's websites and any material displayed therein:
(a) complies with all applicable laws, statutes, ordinances and regulations and other similar instruments in which the Services are supplied and in each country or territory which exercises effective jurisdiction over the use of the Services;
(b) does not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories;
(c) does not contain any material of any kind or nature which is, or which may be reasonably considered by Company to be obscene, indecent, libellous, illegally pornographic, seditious, offensive, defamatory, threatening, unlawful, harmful, vulgar, liable to incite racial hatred, discriminatory, menacing, blasphemous, encourages conduct that could constitute a criminal offence, in breach of confidence or in respect of which it is not the true and lawful owner of the copyright or trade mark as the case may be or for which it has not obtained all necessary licences and/or approvals or which is racially, ethnically or otherwise objectionable; and it further warrants that any such materials shall not be contrary to applicable law, or infringe the rights of any third party;
15.4 it is not insolvent or unable to pay its debts, no order has been made or petition presented or resolution passed for its winding up or for an administration order and no receiver, administrative receiver or administrator or manager has been appointed by any person of its business or assets or any part thereof nor has any equivalent event taken place;
15.5 it shall not use the Services or permit the Services to be used for illegal purposes;
15.6 it shall not use the Services or Publisher websites in any way that may diminish or damage the Company's goodwill or that may cause a reasonable person to assume an association between the Company and a website associated with (without limitation) illegal pornography, crime, defamation or copyright infringement;
15.7 it shall not interfere with or disrupt the Company's computer networks or the networks of those to whom the Company provides Services;
15.8 the use of the Services and Publisher's actions pursuant to this Agreement shall not infringe the Marks of any third party;
15.9 it shall not make any statement, orally or in writing, publicly or privately, or do any act or otherwise conduct itself in such a manner as will or may in the opinion of the Company disparage the Company;
15.10 it shall not use Invalid Technical Measures to achieve click throughs nor act directly or indirectly to encourage or require users, either willingly or unwillingly to undertake or generate click throughs via any means that could reasonably be interpreted as being coercive, incentivised, misleading, malicious or otherwise invalid;
15.11 it shall not attempt to or actually interfere with the proper functioning of the Site or any transactions being offered at the Site. Furthermore, Publisher warrants that it shall not use any device, software or routine which may potentially or actually cause the same;
15.12 it shall not pay or mislead users to perform click throughs, nor shall its own employees perform click throughs;
15.13 it shall not modify Company's Marks and shall not, in any jurisdiction, adopt, use, register or apply for registration of any of the Company's Mark, or any word or symbol, or any combination confusingly similar to any of the Company's Marks;
15.14 it shall not commit any act that would or does impose an unreasonable or disproportionately large load on Company's infrastructure;
15.15 it shall not impersonate any person or falsely state or otherwise misrepresent Publisher's affiliation with a person;
15.16 it shall, and shall continue to carry out implementation in accordance with Company's reasonable instructions;
15.17 it shall maintain and update any details which it has provided to Company;
15.18 it shall not post misleading information with regard to advertisers' advertisements on any Publisher website.
Publisher, shall not give, bargain, sell, assign, sub-let or otherwise dispose of this Agreement or any part thereof or the benefit or advantage of the Agreement or any part thereof without the prior consent in writing of Company
17. FORCE MAJEURE
Company shall not be liable for any delay or failure to perform its obligations under this Agreement to the extent that and for so long as such delay or failure results from circumstances beyond its control (an "event of force majeure"). In the event an event of force majeure occurs, Company shall notify Publisher as soon as reasonably practicable of becoming aware of such event. If any event of force majeure continues for a period exceeding two months, Publisher shall have a right to terminate this Agreement immediately on written notice to Company.
Company and Publisher are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, representative status or employment relationship between the parties. Neither party has authority to and shall not make any representations or incur any liability or cost or enter into any contracts or other arrangements involving the other party in financial or other commitments without that other party's express prior approval in writing; nor shall either party hold itself out as having authority to do the same. Publisher shall not make any statement or representation, whether on the Publisher websites or otherwise, that the parties are in a contractual relationship, other than for the purpose of this Agreement.
19. EQUITABLE RELIEF
The parties acknowledge and agree that a breach of the terms of this Agreement may result in irreparable and continuing damage to the other party for which there may be no adequate remedy at law, and that in the event of such breach, the non-breaching party shall be entitled to apply for injunctive relief and/or a decree for specific performance and such other and further relief as may be appropriate.
The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party's right later to enforce or to exercise it.
21(1) Publisher agrees that, without the prior written consent of Company, neither Publisher nor any of Publisher's Group nor any connected persons of any of Publisher or Publisher's Group shall directly or indirectly, whether by itself, its employees or agents and whether on its own behalf or on behalf of any other person or otherwise howsoever:
a. at any time during the Agreement or for 6 months thereafter solicit or entice away or seek to solicit or entice away from Company or Company's Group any person who at the time of such solicitation, enticement or seeking was during the Agreement (or for 6 months thereafter or during any part of the period of 3 months immediately preceding the Agreement) an employee of the Company or any company in Company's Group, and whether or not that person would commit any breach of his contract of employment by reason of leaving the service of Company or any company in Company's Group; or
b. at any time during the Agreement or for 6 months thereafter employ or otherwise engage any person who during the Agreement (or for 12 months thereafter or during any part of the period of 3 months immediately preceding the Agreement) was employed by Company or any company in Company's Group.
21 (2) Publisher agrees that during the Agreement and for 12 months thereafter not to solicit or enter into an agreement of any kind or entice away from the Services any advertiser who during the Agreement (or for 12 months thereafter) was an advertiser using the Company's Services, whether or not the advertiser advertised with the Publisher through the Services, unless Publisher can evidence in writing that the advertiser has previously advertised with Publisher directly.
22. ENTIRE AGREEMENT
This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently or was as to a matter fundamental to a party's ability to perform this Agreement) and that party's only remedies shall be for breach of contract as provided in this Agreement.
The provisions of Clauses 11, 14, 13, 10, 9, 21, 12, and from clause 16 to 24 inclusive, together with those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of the Agreement.
24. GENERAL PROVISIONS
In this Agreement:
(a) Where the context so admits or requires, words denoting the singular include the plural and vice versa, words denoting any gender include all genders and words denoting persons shall include partnerships, bodies corporate and unincorporated associations of persons and vice versa;
(b) Clause headings are purely for ease of reference and do not form part of or affect the interpretation of this Agreement;
(c) References to "include" and "including" shall be deemed to mean respectively "include(s) without limitation" and "including without limitation";
(d) References to each party herein include references to its successors in title, permitted assigns and novatees;
(e) Save for other companies in Company's group of companies, no person (including, for the avoidance of doubt, any third party to whom any or all rights and/or obligations under this Agreement are assigned, transferred or novated in accordance with the terms hereof or otherwise by written agreement of the parties) who is not a party to this Agreement shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to this Agreement its assent to any such term;
(f) The failure of Company to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect Company's right later to enforce or to exercise it;
(g) If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms;
(h) Those provisions of this Agreement that are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of this Agreement;
(i) Company and Publisher are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, representative status or employment relationship between the parties. Publisher have no authority to and shall not make any representations or incur any liability or cost or enter into any contracts or other arrangements involving Company in financial or other commitments without Company's express prior approval in writing; nor shall Publisher hold itself out as having authority to do the same. Publisher shall not make any statement or representation that the parties are in a contractual relationship, other than for the purpose of this Agreement;
(j) The parties acknowledge and agree that a breach by Publisher of any of the terms of this Agreement may result in irreparable and continuing damage to Company for which there may or will be no adequate remedy at law, and that in the event of such breach, Company shall be entitled to apply for injunctive relief and/or a decree for specific performance and such other and further relief as may be appropriate; and (k) Except as expressly stated in this Agreement, all warranties, conditions and other terms, whether express or implied, by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.