MEDIA SERVICES AGREEMENT
THIS MEDIA SERVICES AGREEMENT (“Agreement”) is entered into by and between Earnlink Network, LLC d/b/a Earnlink, a Delaware limited liability company, located at 5580 La Jolla Blvd #332 La Jolla, CA 92037 (“Earnlink”) and the person or entity registered on and through Earnlink’s Website (“Client”) for the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged. Client and Earnlink may be referred herein below singularly as “Party” or collectively as “Parties”. In the event that Earnlink is required to digitally sign or agree to additional terms during the provision of Services on behalf of Client, both Parties agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot quickly be altered. Therefore, any terms which appear on any website or platform not owned and operated by Earnlink shall be disregarded and deemed ineffective, being superseded by this Agreement as signed by both Parties. All pricing terms shall be set forth in an insertion order (“IO”) which shall incorporate this License Agreement therein without further reference.
WHEREAS, Earnlink has developed, owns or has the licensing right to use certain proprietary software and access to licensed and proprietary campaigns for enhanced website and email newsletter monetization, analytics and campaign reporting including attribution, click tracking (collectively “Services”); and
WHEREAS, Client desires to utilize such Services in conjunction with its business for the purpose of website and email newsletter traffic monetization, advertising network access and reporting, marketing campaign analytics, third-party offer promotions, marketing campaign attribution, click tracking, and general analysis thereon;
WHEREAS, Client and Earnlink believe it is in their mutual interest and desire to enter into an agreement whereby Client would use Earnlink’s Services in furtherance of Client’s business upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises set forth above and the mutual promises, agreements and conditions stated herein, the Parties agree as follows:
- ACCOUNT REGISTRATION.
1.1 Client shall complete a registration process prior to initiation of Services. Client agrees to provide information requested by Earnlink to open Client’s account. Client shall provide accurate and truthful registration information and shall keep such account registration current during the term of this Agreement. Failure to provide information or provision of false information shall result in termination of account and services.
1.2 Client shall be provided a password for access to its account and shall be responsible and liable for all activities undertaken in its account. Client agrees to notify Earnlink immediately of any intrusion into or unauthorized use of its account (even if such activities were not undertaken or authorized by Client) or loss of its password. Earnlink shall not be liable for any damage including loss of revenue arising from unauthorized use of Client account or loss of the password. Client shall indemnify and hold harmless Earnlink for any claims, damages or revenue loss related to unauthorized, improper or illegal use of Client’s account or password.
- LIMITED LICENSE GRANT.
2.1 Services are rendered by and through Earnlink’s platform (“Platform”) utilizing Earnware’s software (“Software”). Earnlink owns or has exclusive license for its Platform and Software throughout the world including any and all portions or copies thereof, trademarks, patents, trade names, copyrights and trade secrets including, without limitation, all related technical know-how and future developments. Therefore, all derivative products, works, improvements, ideas, or suggestions made by Client with respect to the Platform or Software, any improvement or modification to the same is and shall at all times be owned by Earnlink or Earnware respectively with all attendant right, title and interest therein. To the extent requested by Earnlink or Earnware, Client shall assign and cause any third-party associated with Client to assign any such suggestion, recommendation or improvement to the Platform or Software to Earnlink or Earnware including all right, title and interest that Client or its agents may have in any derivative product, work, suggestion, idea, improvements or modification resulting therefrom.
2.2 Client is granted a limited, revocable, nonexclusive world-wide use license to utilize the Platform and Software for its marketing purposes. Client shall own all Client collected data (including derivative data), including consumer information, to manage, use and have access to the same pursuant to this Agreement. Earnlink shall not be responsible or liable for Client’s collection, storage or use of such data. Client shall be solely responsible for collection, storing, creating, maintaining copies of its own data and any related information separate and distinct from Earnlink Platform or Software.
2.3 Client acknowledges that Earnlink has the right to analyze any and all data, within its software in its sole discretion (“Data Mining”). Any data derived by Earnlink through Data Mining, shall be the sole property of Earnlink. Data Mining may include tracking affiliate usage of software, campaign conversions and clicks, device usage and aggregate data. Earnlink may, in its sole discretion, share derived data with Client or third-parties. If derived data is shared with Client, Client shall use the same for the purposes for which it is provided and shall not disclose it to any third-party without the prior written approval of Earnlink.
2.4 Client shall not: (a) directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying algorithms of the Software; (b) copy, modify, translate or creative derivative works based on the Software; (c) lease, sell, sub-license, distribute, assign or otherwise transfer Client’s rights under this Agreement including the right to access and use the Platform and Software to any third-party; or (d) remove any proprietary notice, label, trademark or copyrighted material on or within the Platform or Software. All rights not expressly given to Client by virtue of this Agreement, shall be reserved to Earnlink and/or Earnware respectively.
2.5 This License is expressly limited to Client. In the event that, Client allows a third-party to access or use the Platform or Software without Earnlinks’ written authorization, the Client’s account and license may be terminated without further notice. In the event Client permits multiple employees to use the Platform and Software, then Client shall provide a list of authorized agents to access the Platform and Software and shall keep Earnlink informed of any change in the authorized agent(s). In all cases, Client shall be solely responsible for use of the Platform or Software undertaken in its account. .
- By submitting or posting any ads, campaign or other content (“Content”), Client grants Earnlinks and its successors and assignees a worldwide, non-exclusive, royalty-free, perpetual, sub-licensable and transferable license under any of your intellectual property, moral or privacy rights to use, copy, distribute, transmit, modify, prepare derivative works of, publicly display, alter, decompile, publicly perform such Content on, through or in connection with the Services. Such license includes the right to use, reproduce, publicly and display Client’s name, trademarks, trade names, service marks, logos, URLs to advertise and promote Earnlink. Client may not use Earnlink’s trademarks and other intellectual property for promotion of Client’s business without the prior written approval of Earnlink.
- INTELLECTUAL PROPERTY OWNERSHIP
3.1 Client agrees that Earnlinks and/or its licensors own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (registered or unregistered, and wherever in the world those rights may exist). In addition, Third Party Providers own all legal right, title and interest in and to the Third Party Services. Nothing in this Agreement gives Client a right to use Earnlink or its Licensors or Third Party’s trade names, trademarks, service marks, logos, domain names or other distinctive brand features.
3.2 Client shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed or contained within or on the Services. Any trade names, trademarks, service marks, logos, domain names or other distinctive brand features used with, on or relating to any Third Party Services (“Third Party Marks”) available on or through the Services, are the property of the Third Party Providers or their respective licensors. Client will not use, and have not rights in, any Third Party Marks without written permission from the mark owner. Client shall not use any trade name, trademark, service mark, logo, domain name, or other distinctive brand feature of any company, entity or organization in any what that is likely or intended to cause confusion as to the owner or authorized user of such names, marks, logos or features.
- THIRD PARTY SERVICES AND CONTENT
- THE PARTIES AGREE THAT EARNLINK DOES NOT ENDORSE ANY CONTENT (INCLUDING WITHOUT LIMITATION ANY THIRD PARTY CONTENT) OR ADVICE EXPRESSED IN ANY CONTENT AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THIRD PARTY CONTENT AND/OR USER CONTENT. EARNLINK DISCLAIMS ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF ANY AND ALL USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE SERVICE OR OTHERWISE.
- The Parties agree that Earnlink has no obligation to accept, display, or maintain any Content and retains the right to remove and permanently delete any Content on its Platform without notice and for any reason. Any Content provided by a third party shall at all times be the responsibility and liability of the third party who presented such Content. To the extent Content is presented by Client, Client represents and warrants that such Content (i) complies with all applicable laws; (ii) does not infringe or violate any third-party intellectual property rights, privacy or publicity rights, or moral rights; and (iii) that Client has all necessary rights, licenses, consents and authorities to submit such Content. As to Third Party Content, Earnlink is not responsible for the accuracy, usefulness, safety, appropriateness of, or infringement of any intellectual property rights of or relating to Third Party Content.
- Without limiting the foregoing, Client agrees that it shall not transmit, submit or upload any Content that: (1) restricts use of the Services; (2) violates the legal rights of others; (3) infringes (or results in the infringement of) the intellectual property rights, moral rights, publicity, privacy, or other rights of any third party; (4) is reasonably believed to be stolen, illegal, counterfeit, fraudulent, pirated, violent or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; (5) does not comply with all applicable laws, rules and regulations; (6) imposes an unreasonably or disproportionately large load on the Platform infrastructure; or (7) posts, stores, transmits, offers, or solicits anything that contains the following : (a) material that is offensive, promoting or glorifying hate, violence, or bigotry, (b) material that is racially or ethnically insensitive, defamatory, harassing or threatening, (c) pornography or obscene material, (d) any virus, worm, trojan horse, or other harmful or disruptive component or (e) anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation.
- Earnlinks, may, but is not required to, monitor Content for compliance with this Section 4, including monitoring through automatic means. In the event Earnlink finds a violation of this Section 4, it will remove it from the Platform without notice.
- TERM AND TERMINATION.
5.1 The Initial Term (“Initial Term”) of this Agreement shall commence on the date that Client receives a password and shall expire twelve (12) months thereafter. This Agreement shall automatically renew for additional twelve (12) month periods after the Initial Term (“Extended Term”) unless terminated earlier pursuant to the terms and conditions of this Agreement. The Initial Term and any Extended Term shall constitute the entire term of this Agreement (collectively “Term”).
5.2 The Agreement may be terminated at any time with thirty (30) days written notice (email notice acceptable) by either Party. Either Party may terminate this agreement immediately upon written notice by either Party in the event of any material breach of this Agreement by the other Party; provided however, that prior to either Party having the right to terminate the Agreement for material breach, such Party shall give the other Party written notice specifying such breach and ten (10) days to cure such breach (or such longer time as may be reasonably necessary to cure such breach if the Party in breach acts expeditiously and if the nature of such breach requires a longer period). Notwithstanding any other provision to the contrary, Earnlink may suspend or terminate this Agreement immediately upon written notice if Earnlink has a reasonable basis that suspension or termination is necessary to prevent a violation of Federal or State law, or to prevent damage to Earnlink’s reputation.
5.3 Upon termination of this Agreement, for any reason, the following protocols shall apply: (a) Client shall cease using the Service and Earnlink shall terminate access to the Platform; (b) Earnlink shall secure for transfer any Client data in its possession for ten (10) days and then destroyed the same except as provided in this Section 5.3 ; (c) any Client data will be transferred in the format it was present or preserved by Earnlink; (d) Client shall pay Earnlink all sums due and owing, if any, within five (5) business days of the effective date of termination. Notwithstanding Client’s ownership of its data, Earnlink shall have the right to retain a full and complete copy of Client’s data subject to the confidentiality provisions of this Agreement for the purpose of proving compliance with all applicable laws, rules and regulations.
- TRACKING AND PAYMENT TERMS.
6.1 Tracking. The number of Completed Actions, Click-Through, or Impressions (or other applicable unit) for which payment is due, shall be as recorded by Earnlink platform. Earnlink platform tracking will shall compile, calculate, and electronically deliver the tracking count to Client which shall be used for all purposes and shall be conclusive for determination of payment purposes. Based upon such tracking count, Earnlinks shall act as an intermediary to collect from Third Party Providers payment for Client services.
6.2. Payment. Based solely upon Earnlink’s cash collection report, Client shall pay to Earnlink a percentage of such collections as listed in the Platform user interface which may change from time-to-time based on volume and margins at the sole discretion of Earnlink. After payment to Earnlink, Earnlink will distribute the remaining cash collections to Client approximately fifteen (15) days following the end of each month when there are applicable Client-generated cash collections, less any taxes required to be withheld under applicable law. Client shall provide to Earnlink a W-9, and/or additional similar information for tax reporting purposes, as a condition of payment.
6.3 Taxes. Client shall pay all taxes (excluding Earnlink’s income taxes) fees and assessments imposed by any governmental authority with respect to the license granted hereunder by Earnlink and Client’s use of the Software.
- COMPLIANCE REQUIREMENTS.
7.1 Client represents and warrants that it and its vendors, advertisers and publishers shall comply with all applicable State and Federal laws (including without limitation the CAN-SPAM Act of 2003, effective January 1, 2004 and all revisions thereto (“CAN-SPAM Act”); the Telephone Consumer Protection Act of 1991 and all revisions thereto (“TCPA”), and all rules and regulations relating to same; and all state consumer protection laws in any state where Client conducts business, including the California Consumer Protection Act of 2018 (“CCPA”), The Federal Trade Commission Act (“FTC ACT”) (collectively “Applicable Laws”)at all times during the Term. Client shall be solely responsible for breach of any Applicable Laws by its clients, advertisers, vendors and/or publishers. Earnlink reserves the right, in its sole discretion, to suspend or terminate Services without liability as well as pursue all legal and equitable remedies in the event Client violates an Applicable Law.
7.2 Client shall not: (a) interfere with or disrupt the Service or networks connected to the software or disregard any requirements, procedures, policies or regulations of Earnlink’s connected to the Service; (b) violate any applicable local, state, national or international laws or regulations; (c) send unsolicited or unauthorized advertising, or forced opt-in offers. If Client or its’ publisher is listed on block lists, Client shall remove publisher from the Service.
7.3 Client and its’ publishers shall not upload, post, email, transmit or otherwise make available any content through the Service that: (a) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, gambling, invasive of another’s privacy, hateful, or racially, politically, ethnically or otherwise objectionable; (b) harms minors in any way; (c) infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Intellectual Rights”) of any party; (d) includes Earnlink’s service marks or URL address; (e) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (f) must not directly or indirectly promote pornography or any other adult related products, sites, materials, or any other otherwise objectionable content.
7.4 Earnlink shall have the sole and exclusive right to respond to violations of this Section 7. Client and its’ publishers shall authorize Earnlink to monitor its communications on the Software Service to ensure compliance with this Section 4.
- MANAGEMENT SERVICES.
8.1 In the event Client retains Earnlink to provide Management Services through Earnlink’s network of electronic and web properties, including third-party ISP, ESP CRM, content or campaign provision, APIs and add-ons, web-based content services used for digital marketing (collectively “Management Services”). Such Management Services include any updates, changes, customizations, enhancements, new features, and/or the addition of any new Web properties all subject to the terms of this Agreement.
8.2 Where Management Services involve the retention of third parties, such third-party retentions shall be between Client and such third-party and may require Client execute terms presented by a third- party. Earnlink shall not be responsible or liable for actions or inactions of such third-party including third-party breach of its agreement with Client. Earnlink may facilitate payment between Client and such third-party but shall not be liable for any such payment. It is agreed between the parties that the sole obligation of Earnlink in provision of Management Services is solely to ensure Platform and third-party web-based product or services are properly configured.
8.3 Fees for Management Services are configured at the time such services are requested and provided and are in addition to Fees for Services.
- TECHNICAL SUPPORT.
9.1 Earnlink provides incident-based technical support to assist in load, access or resolve issues resulting from the normal use of the Service by Client. Earnlink will also supply to Client technical support via email as it pertains to the normal use of the Service. Earnlink does not provide technical support to any third-party associated with Client including, but not limited to publishers, advertisers, vendors, or affiliates.
- DERIVED DATA OWNERSHIP, AGGREGATION AND DATA STORAGE.
10.1 “Client Data” consists of information which is captured by the Software and or placed on Earnlink’s Platform by Client or its advertisers, vendors, publishers and the like as well as all applications sorting and deriving functional statistical information from such Client Data. Client will own all Client Data. Client is responsible for making and keeping current copies of all Client Data and related information. Earnlink shall not disclose Client Data to any third-party unless: (a) directed by Client; (b) in response to a court order, subpoena or other legal process, and provided that Earnlink has given Client reasonable notice of such court order, subpoena or other legal process; or (c) is in aggregate non-personally identifiable form. Nothing herein shall impose any transfer of ownership or further use of Earnlink’s data or database which is expressly owned by and reserved for use by Earnlink.
10.2 “Earnlink Data” consists of any information, including but not limited to data mining database, tracking data, tracking methodologies, other than Client Data, generated by the Software, regardless of whether or not the information, tracking data or tracking methodology was generated as a result of Client’s use of the Software. All data and information that is not owned by Client is owned by Earnlink, with all right, title and interest therein, and shall be considered Earnlink Data hereunder.
- CLIENT RESTRICTED USE. Client shall use the Service in compliance with the following:
11.1 Client may not transfer, assign, sublicense, or otherwise provide any third-party access to the Software Service.
11.2 Client shall not: (a) modify, translate or create derivative works based on the Software, or permit others to do so, including in order to compete directly or indirectly with the Earnlink; (b) rent, lease, transfer, or otherwise transfer rights to the Software; (c) reverse engineer or disassemble the Software; or (d) provide access to third-parties, including to use of a single account for multiple business entities, unless specifically authorized by Earnlink.
11.3 Client shall not, directly or indirectly, in connection with their business practices or activities, or on or in connection with any websites controlled or operated thereby, or on or in connection with any websites in which they utilize the Software: (a) participate in, undertake, encourage or display any political hate-mongering, racial, ethnic, fraudulent, misleading or otherwise objectionable content or false advertising; (b) participate in, undertake, encourage or display any hacking or software pirating; (c) participate in, undertake, encourage or display any activity in violation of any applicable state, federal or international laws, rules or regulations; (d) participate in, undertake, encourage or display any activity that violates any applicable federal, foreign, state or local laws, rules or regulations, as amended from time to time.
11.4 In the event Earnlink, in its sole discretion finds any advertising, lead generation or website content or marketing materials to not meet the letter or spirit of the standards set forth in this Agreement, Earnlink may request that Client make changes to bring such content and materials into compliance. If Client fails to make the necessary changes immediately upon request, Earnlink is authorized to remove the content and/or materials, suspend any applicable campaign, or terminate this Agreement immediately, without liability to Client. Earnlink retains the right to audit from time to time the content and material that are promoting, distributing and/or displaying on or through the Software or in connection with the use thereof.
11.5 If any of Client’s Internet Protocol Addresses (“IP Addresses”) or domains are ‘blacklisted’ or ‘block listed’ for SPAM, or other abuses and a resolution cannot be found by the Parties, Earnlink may require that Client’s use of Earnlink systems and services be immediately suspended. In the event Client fails to remedy the abuse and reputation of its domains and IP Addresses, or refuses to cease abusive practices, upon notice, Earnlink reserves the right to indefinitely suspend or remove Client’s accounts, domains, IP Addresses, campaigns, hosted content or anything related to Client’s use of Earnlink systems including Client’s access to the Software or take additional actions it deems necessary or appropriate to terminate this Agreement and Client’s use of the Software immediately upon written notice, without liability and in all events, in Earnlink’s sole discretion.
- CONFIDENTIALITY AND NON-DISCLOSURE.
10.1 As used in this Agreement, the term “Confidential Information” includes, without limitation, any software, data or information that: (a) is labeled as proprietary or confidential; (b) is identified at the time of its disclosure as confidential; (c) a reasonably prudent person would recognize would not be made available to third-parties without restriction or payment; (d) is competitively sensitive material, and not generally known to the public. Confidential Information shall further include, without limitation, this Agreement, the Software Service and/or the configuration thereof. Confidential Information does not include information that: (i) was or is in the public domain prior to the date of disclosure; (ii) was or is lawfully received by the recipient party from a third-party without obligation of confidentiality; (iii) was or is already known by or in the possession of the recipient party and not in violation of any obligation of confidentiality; or (iv) is required to be disclosed by under applicable law or by a governmental order, decree, regulation or rule provided that the recipient party gives written notice to the disclosing party as far in advance as possible prior to disclosure.
10.2 During the Term of this Agreement and for three (3) years thereafter, each Party receiving Confidential Information (“Receiving Party”) of the other Party (“Disclosing Party”) shall: (a) treat such Confidential Information as the confidential property of the Disclosing Party and be responsible for any breach of the terms hereof by itself or any authorized person on its behalf (including, in the case of Client, any breach by a User or business associate); (b) not use the Confidential Information except in connection with its use of the Software as expressly permitted in this Agreement; (c) not disclose or otherwise make available the Confidential Information of the Disclosing Party to any third-party (except as authorized herein and other than to such party’s employees who have a need to know such Confidential Information, and have been advised of the confidential nature of such information and the obligations that apply to them in connection therewith); and (d) maintain the confidentiality of the Confidential Information of the Disclosing Party as it would its own most highly confidential information, but in no event shall the Receiving Party use less than reasonable care. Furthermore, each Party shall use commercially reasonable efforts to procure from each of its employees and from all independent contractors written undertakings that: (i) they will not use, disclose or otherwise make available or allow to be used, disclosed or made available, the Confidential Information of the Disclosing Party, by or to any third-party (except as authorized herein); and (ii) they will maintain the confidentiality of such Confidential Information.
10.3 The Receiving Party acknowledges that the Disclosing Party shall incur irreparable damage if the Receiving Party should breach any of the provisions of this Section. Accordingly, if a Receiving Party or any of its respective agents or representatives breaches or threatens to breach any of the provisions of this Section, the Disclosing Party shall be entitled, without prejudice, to all the rights and remedies available to it, including an equitable relief restraining any potential breach of the provisions of this Section by the Receiving Party, without having to prove damages or post a bond.
- REPRESENTATIONS AND WARRANTIES.
11.1 Each party represents and warrants that it has the sufficient authority to enter into this agreement. Client represents and warrants that it has and will continue during the Term to provide to Earnlink true, accurate, current and complete information. To the best of Earnlink’s knowledge, Client’s use of the Software in accordance with this Agreement and the applicable specifications delivered in writing by Earnlink does not and shall not infringe upon any patent, trademark, copyright, trade secret or other intellectual property, or proprietary right of any third-party, and there is currently no actual or, to the best of Earnlink’s knowledge, threatened, suit, against Earnlink by any third-party alleging such infringement. Notwithstanding anything to the contrary contained herein, the Earnlink makes no representation or warranty with respect to infringement based on or arising out of, in whole or in part: (a) any modification to the Software by Client; or (b) any combination or the Software with another item of software, other intellectual property, website, or functionality; or (c) utilization of the Software by Client other than in accordance with this Agreement and the applicable specifications delivered in writing by Earnlink to Client.
- DISCLAIMER OF WARRANTIES.
12.1 EXCEPT AS PROVIDED IN SECTION 11.1 OF THIS AGREEMENT, THE PLATFORM AND SOFTWARE IS PROVIDED “AS-IS” AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. EARNLINK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE APPLICATION OR THE OPERATION OR USE THEREOF. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM EARNLINK OR THROUGH OR FROM THE SERVICES OR PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. EARNLINK HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. EARNLINK HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EARNLINK DOES NOT WARRANT THAT THE APPLICATION WILL MEET ALL OF CLIENT’S BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE. USE OF SERVICES AND PLATFORM IS AT CLIENT’S SOLE RISK AND SERVICES AND PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
- LIMITATION OF LIABILITY AND DAMAGES.
13.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EARNLINK BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, OR STRICT LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, DATA OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EARNLINK’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNT PAID BY CLIENT AS FEES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM GIVING RISE TO THE ALLEGED DAMAGES.
- INTELLECTUAL PROPERTY CLAIM REMEDIES.
14.1 If the Software or any portion thereof becomes, or in Earnlink’s sole judgment is likely to become, the subject of any claim or action that it violates the intellectual property or other rights of another person, then Earnlink may, at its sole option either: (a) procure the right to continue using the Software; (b) modify the Software to render it non-infringing; or (c) replace the Software or any portion thereof with non-infringing technology. If none of the foregoing is commercially practicable, Earnlink may terminate this Agreement without liability upon written notice. The remedy set forth in this Section 14 constitutes Earnlink’s total liability to Client for intellectual property infringement by the Software.
15.1 Indemnification by Client. Client and its successors and assigns shall indemnify, defend, and hold harmless Earnlink, and its members, directors, officers, employees and agents, and its and their successors and assigns from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that Earnlink may incur or suffer as a result of a third-party claim or demand, which arise, result from, or relate to: (a) a breach of this Agreement; or (b) a breach of this Agreement by an agent, Client, vendors or other related party of Client; or (c) any breach of a third-party agreement provided by Management Services; or (d) Client’s services or products; or (e) any Client related user’s business practices and/or marketing practices; or (f) the use of the Software not in accordance with this Agreement.
15.2 Indemnification by Earnlink. Earnlink and its successors and assigns shall indemnify, defend, and hold harmless Client, and its shareholders, directors, officers, employees and agents, and its and their successors and assigns from and against any and all third-party claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that any such indemnified party may incur or suffer as a result of a third-party claim or demand, which arise, result from, or relate to: (a) a breach of any of its representations and warranties set forth in this Agreement; or (b) any claim of infringement solely related to the Software. Notwithstanding the foregoing, Earnlink shall have no liability or indemnity obligation for any such claim arising from: (i) the use of the Platform or Software in combination with non-approved third-party products, including hardware and software; (ii) modifications or maintenance of the Software by a party other than Earnlink; or (iii) or the use of the Platform or Software in any manner not authorized herein or in violation of this Agreement.
15.3 The foregoing indemnification obligations are conditioned on the indemnified party: (a) giving the indemnifying party prompt written notice of the relevant claim; (b) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; and (c) giving the indemnifying party the right to control the defense and settlement of such claim, except that the indemnifying party shall not enter any settlement other than for money damages without the indemnified party’s prior written approval. The indemnifying party will pay any and all costs, damages and reasonable attorney fees and reasonable expert witness fees awarded against the indemnified party and all expenses incurred by the indemnified party in connection with or arising from any such claim, suit or proceeding.
15.4 Notwithstanding anything contained herein to the contrary, neither Party shall be liable or required to indemnify the other party for such other Party’s gross negligence or willful misconduct.
16.1 During the term of this Agreement and for a period of two (2) years after termination of this Agreement, Client shall not solicit, seek to employ or hire Earnlink employees, the identities of which may be disclosed to Client during the term of the Agreement. In addition to Earnlink’s rights and remedies under this Agreement or at law, Client agrees that monetary damages for a breach of or a threatened breach of this Section 16 will not be adequate and that Earnlink shall be entitled to seek injunctive relief (including temporary and preliminary relief) without the need or requirement for the filing of a bond or other undertaking.
- DISPUTE RESOLUTION AND CLASS ACTION BAR.
17.1 If any dispute arises under this Agreement, the Parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the State of California, San Diego County. Any costs and fees other than the Party’s respective attorneys’ fees associated with the mediation shall be shared equally by the Parties. If the Parties are unable to arrive at a mutually agreeable resolution through mediation, the Parties agree to submit the dispute to binding arbitration before the American Arbitration Association under the commercial rules in the State of California, San Diego County. The Parties agree that the binding arbitration will be conducted by a single arbitrator. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding anything to the contrary contained herein, if Client does not pay all Fees due under this Agreement, the Parties agree that Earnlink may elect to resolve any nonpayment dispute by submission to a court located in the State of California, San Diego County. If any litigation or arbitration is necessary to enforce this Agreement or the terms thereof excepting therefrom payment obligations of Client, the prevailing Party shall be entitled to an award of reasonable attorneys’ fees, costs and expenses. This Agreement will be governed by the laws of the State of California. Neither party shall participate in any class action against the other party in any capacity.
- GENERAL PROVISIONS.
18.1 Independent Contractors. Each Party hereto is an independent contractor of the other party and nothing contained herein shall be construed to create a partnership, joint venture or agency relationship between the Parties, and neither Party shall be authorized to bind the other in any way. This Agreement is between the Parties and is not for the benefit of any third-party, directly or indirectly including, if applicable, any User accessing the Software by means of an account established by Client.
18.2 Non-Assignment. Neither this Agreement nor the License granted hereunder nor any rights or obligations set forth herein may be assigned, delegated, subcontracted or otherwise transferred, by Client to any third-party, whether by operation of law or otherwise, without the express prior written consent of Earnlink; provided, however, that, this Section 18.2 shall not be construed to require the consent of the other party with respect to the assignment or transfer (by law or otherwise) of the license granted hereunder or any rights or obligations set forth herein in connection with the non-consenting party’s sale of all or substantially all of its assets or the sale or issuance of more than fifty (50%) percent of the non-consenting party’s voting equity.
18.3 No Waiver. The failure of either Party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. Except as provided herein, no remedy set forth in this Agreement is intended to be exclusive. No delay by either Party in exercising any of their respective rights or remedies hereunder shall be deemed to be a waiver of such rights or remedies. No waiver by either Party of any rights under this Agreement or breach by the other Party hereunder shall in any way be a waiver of any such rights in the future or any future breach. Any waiver, amendment or modification of this Agreement, and any approval or consent hereunder must be in writing and signed by the Party against whom enforcement is sought or the Party providing such approval or consent.
18.4 Force Majeure. Except for payment to Earnlink, no delay or failure of a party to perform any of its obligations under the Agreement shall be considered a breach of this Agreement to the extent it results from any cause beyond its control including any act of God, pandemic, earthquake, hurricane, flood, fire, natural catastrophe, severe weather, public emergency, accident, labor difficulty, strike, lock-out or other dispute, riot, civil commotion, insurrection, equipment or system failure or changes in any federal, state, or local laws, statutes, rules, regulations, or ordinances or other action of any governmental authority having jurisdiction (each a “Force Majeure Event”).
18.5 Invalidity of Provision. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to the prevailing law rather than voided, if possible, in order to achieve the intent of the Parties and in the event the remaining provisions of this Agreement shall remain in full force and effect and shall be fully binding upon the Parties.
18.6 Headings. The headings set forth in this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement.
18.7 Notices. All notices, requests, demands and other communications required or permitted to be given under this Agreement shall be in writing and addressed to the Legal Department of the respective party at the addresses set forth in the introductory paragraph to this agreement (or such other address as the parties may designate by written notice in the manner aforesaid), and shall be deemed to be given when delivered in person or when sent by facsimile (with receipt confirmed), or on the first business day after posting thereof with a nationally recognized overnight courier, or when received if sent by any other means.
18.8 Amendment. No amendments to this Agreement shall be effective unless made in writing and signed by the Parties.
18.9 Entire Agreement. This Agreement and any exhibits, or schedules referred to in this Agreement represent the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications or other understanding related to the subject matter of this Agreement. Except as otherwise provided in this Agreement, all modifications or amendments to this Agreement must be in writing signed by both Parties.
18.10 ELECTRONIC SIGNATURES. Client acknowledges and agrees that by clicking on the button labeled “Agree” or such similar links as may be designated by Earnlink to accept the terms and conditions of this Agreement, Client is submitting a legally binding electronic signature and is entering into a legally binding contract. Client acknowledges that its electronic submissions constitute its Agreement and intent to be bound by this Agreement and all terms contained therein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (“E-Sign Act”) or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY MEDIA COMPANY. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.