EXCHANGE PUBLISHER SERVICE AGREEMENT - UNITED STATES
INTRODUCTION.This Exchange Publisher Service
Agreement (this "Agreement") shall govern the relationship between
eBay Enterprise, Inc., a Pennsylvania corporation, with offices
located at 7 South Main Street, Third Floor, Wilkes-Barre PA 18701 ("Enterprise"),
and the party requesting the Services ("You" or "Publisher") with
respect to the advertising service (the "Service") offered through
Enterprise's exchange located at www.pepperjamnetwork.com (the "Site").
You and Enterprise may also be individually referred to herein as "Party"
and collectively as "Parties."
TO USE OR ACCESS THE SERVICES, YOU MUST AGREE TO BE LEGALLY
BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING "I ACCEPT"
WHERE INDICATED. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU HAVE NO
RIGHT OR AUTHORITY TO ACCESS OR USE THE SERVICES OR EXERCISE ANY OTHER RIGHT IN
If You have registered for or on behalf of an entity, you are
deemed to have accepted this Agreement on behalf of such entity. To the extent
Publisher is a network of third parties, then Publisher shall be responsible to
ensure that such third parties comply with the terms of this Agreement and the
terms of the applicable Advertiser Program(s). If you do not agree to the
terms of this Agreement in its entirety, You are not authorized to: (a)
register as a publisher; (b) use the Service; and/or (c) use the Site, in any
manner or form whatsoever. Enterprise may, in its sole discretion, refuse to
register You as a Publisher and/or terminate Your participation in an
Advertiser Program (as defined below) at any time for any reason. To the
extent that the terms of any Advertiser Program are in conflict or inconsistent
with this Agreement, this Agreement shall take precedence and control.
You agree to use the Site, the Service and any additional
products and/or services offered by Enterprise only in accordance with this
Agreement. Enterprise reserves the right to make changes to the Site, Service
and this Agreement at any time and the revised version of the Agreement shall
become effective after 30 days of being posted on the Site. Following such 30
day period, Your continued use of the Site and/or Service after any such
modification thereof shall constitute Your consent to such modification.
EXCHANGE. As a service provider and online exchange,
Enterprise facilitates affiliate marketing programs via its technology and
network on the Internet. An affiliate marketing program ("Advertiser Program")
is where a Publisher or its agent operates one or more web site(s) (domain or
portion of a domain within the Internet) and/or subscription e-mail list(s) to
earn financial compensation ("Publisher Fees") for sales and or leads ("Transactions")
generated from such web site and/or e-mail list through a click made by a
customer (each, a "Customer") on a web site or content operated by an
advertiser ("Advertiser"). The Advertiser compensates the Publisher, in
accordance with this Agreement and the specifications of the applicable
Advertiser Program agreed to by the Advertiser and the Publisher under a
In consideration of the mutual covenants and agreements
contained herein, the parties, intending to be legally bound, hereby agree as
1. Participation in Advertiser Programs.
a. Accessing Advertiser Programs. Publisher may apply to
Advertiser Programs for the opportunity to earn Publisher Fees by promoting
Advertisers in accordance with the Advertiser Program terms and this Agreement.
Once approved by the Advertiser for acceptance into its Advertiser Program,
Publisher consents to and shall be bound by the terms and conditions of the
Advertiser Program and Publisher may utilize links to Advertiser's web site or
offers in accordance with the Advertiser Program terms and this Agreement.
Program Terms. The terms, conditions and other details of an Advertiser
Program shall be available through the Site. Transactions qualifying for a
Publisher Fee are defined by the Advertiser, the Advertiser Program and the
2. Publisher Requirements with Enterprise.
a. Registration. To use the Site as a Publisher, You must
provide Enterprise with truthful, accurate and complete registration
information. If any such information changes, You must immediately contact
Enterprise to update Your registration information.
b. Valid Information. Publisher agrees to provide
Enterprise and Advertiser with valid information about Publisher and
Publisher's promotional methods, and to maintain up-to-date account
information, including contact information, web sites used, ownership, and any
other information requested by Enterprise or the applicable Advertiser.
Enterprise has the right to confirm and check the truth and
accuracy of any registration information at any time.
Please note that the verification of Your registration information,
specifically, name, address and tax identification number, against a third
party database may be considered under certain laws to constitute a "credit
check" and You hereby consent to any such verification process. Notwithstanding
that, your participation in the Services as a publisher does not depend on Your
credit worthiness or financial stability.
If any information is determined by Enterprise to be misleading,
inaccurate or untruthful, Enterprise may restrict, deny or terminate Your
account, Your access and use of the Services and the Site, and/or any benefits
derived from Your participation in any Advertiser Program, including the
withholding or forfeit (in whole or in part) of any Publisher Fees to
c. Standards. Publisher represents and warrants that all
promotional means utilized by Publisher (a) will not contain objectionable
content (including but not limited to content that is misleading, illegal,
and/or promoting illegal goods, services or activities), and (b) will not mislead
others. You further represent and warrant that the content of Your website and
e-mails do not promote, advocate, facilitate or otherwise include any of the
following: (i) hate speech or material that discriminates on the basis of race,
ethnicity, gender, age, disability, religion or sexual orientation; (ii)
investment, money-making opportunities or advice not permitted under law; (iii)
violence or profanity; (iv) pornographic, obscene, sexually explicit or related
content; (v) material that defames, abuses, is libelous, is tortuous or
threatens physical harm to others; (vi) material that displays any telephone
numbers, street addresses, last names, URLs, e-mail addresses, any confidential
information or any other personally identifiable information of any third
person; (vii) material that impersonates any person or entity; (viii) any
indication that any statements You make are endorsed by Enterprise and/or an
Advertiser, without Enterprise's and/or Advertiser's express prior written
consent; (ix) promotion of illegal substances or activities (e.g., illegal
narcotics, how to build a bomb, counterfeiting money); (x); content which is
inappropriate or harmful to children; (xi) promotion of terrorism or
terrorist-related activities, sedition or similar activities; (xii) software
pirating (e.g., warez, hotline); (xiii) hacking or phreaking; (xiv) any
material that 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; (xv) any
software, product or service that is illegal or that violates the rights of a
third party including, but not limited to, spyware, adware, programs designed
to send unsolicited advertisements (i.e. "spamware"), services that send
unsolicited advertisements, programs designed to initiate "denial of service"
attacks, mail bomb programs and programs designed to gain unauthorized access
to networks on the Internet; (xvi) any software, product or service that
harvests or collects the personal information of Internet users, whether or not
for commercial purposes, without the express consent of such users; (xvii) any
spoofing, redirecting or trafficking from other websites in an effort to gain
traffic; (xviii) any content that infringes upon the intellectual property
rights of any third party or any other right including, without limitation,
false advertising, unfair competition, invasion of rights of publicity or
privacy; (xix) gambling, contests, lotteries, raffles, or sweepstakes; (xx) any
material that violates CAN-SPAM or any similar or comparable laws in any other
country or jurisdiction in which You operate; or (xxi) any illegal activity
whatsoever (including any violations of applicable U.S. state or federal law or
regulation, Canadian provincial or federal law or the laws of any other country
or jurisdiction in which You operate).The Enterprise Transparency Department
may review Publisher information, conduct and any suspected fraudulent, abusive
or otherwise illegal content or activity. Any validated breach of this Section
is grounds for immediate termination of this Agreement, forfeit of Publisher
Fees, and deactivation of Publisher's account.
d. Promotional Method Restrictions. Publisher agrees that
it shall comply with all laws and regulations and will not engage in spamming,
unlawful mass emailing or any unapproved emailing or in any way fail to comply
with the CAN SPAM Act of 2003, 15
U.S.C. 7701, et seq., as amended, or any comparable laws, rules or regulations in
any country from or to which Publisher is accessing the Site or the Services or
participating in any Advertiser Program, that govern email marketing and
advertising. Publisher agrees that its promotional activities will not
infringe on the Advertiser's intellectual property rights, including but not
limited to copyright and trademark rights.
Publisher shall not perform trademark bidding or direct linking
on search engines including on Google, Yahoo and MSN, when the applicable
Advertiser Program prohibits such activity. By "direct linking" this agreement
refers to sending traffic directly from the search engine to the Advertiser
website without use of an intermediary landing page.
Enterprise reserves the right at any time to further restrict
what activities are considered valid and will entitle Publisher to Publisher
Fees under this Agreement. Enterprise reserves the right to withhold, refuse or
withdraw approval of any websites, email distribution lists and/or marketing
channels for any reason, whatsoever, in Enterprise's sole discretion. Only
Publisher's websites, e-mail distribution lists or other marketing channels
that have been reviewed and approved by Enterprise may be utilized in
connection with the Site and Service.
e. Creative and Tags. Publisher shall not alter, modify
or otherwise change the creative content, links and code used to create the
advertisements, text link, banner ad or coupon ("Creative"), or any Creative-related
feature, that it obtains access to in connection with any Advertiser Program in
any manner whatsoever, without Enterprise's prior express written consent.
PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF CREATIVE THAT IT
HAS PLACED WITHIN ITS MEDIA ON A DAILY BASIS. IT IS THE PUBLISHER'S
RESPONSIBILITY TO CHANGE CREATIVE WITHIN ITS MEDIA WHEN THE CREATIVE IS NO
LONGER AVAILABLE ON THE SITE. Enterprise ASSUMES NO RESPONSIBILITY TO NOTIFY
PUBLISHER WHEN A SPECIFIC CREATIVE IS NO LONGER AVAILABLE ON THE SITE.
In addition, Site integration tags and tracking pixels ("Tags")
included in the Creative or otherwise incorporated may not be altered under any
circumstances. Enterprise employs a testing system to determine whether You
have removed or altered the Tags. Altering, removing or disabling Tags may
jeopardize Your ability to be paid for Transactions and is grounds for
immediate termination of Your Publisher account, with or without notice. You
will not, nor knowingly permit any person to, activate Creatives or inflate the
amount of Transactions through any deceptive or misleading practice, method or
technology including, but not limited to, the use of any spyware, device,
program, robot, Iframes, hidden frames, redirects, spiders, computer script or
other automated, artificial or fraudulent methods designed to appear like an
individual, real live person performing an Transaction.
f. Personally Identifiable Information of Visitors.
Publisher represents and warrants that Publisher will not enable the tracking
code to collect personally identifiable information of Customers or potential
Customers that would allow You to personally identify such Customer or
Policies. You will ensure that any and all websites employed by You in
connection with Your participation in any Advertiser Programs will
conspicuously from such website's home page, with a link that contains the word
"Privacy", "Legal", "Terms" or similar language.
practices, identify the collection, disclosure and use of any information
related to an end user that You provide or may provide to Enterprise and to any
provide information on your use of tracking devices, such as but without
limitation to, cookies, including tracking devices enabled by Enterprise at
your request on your behalf. Your website will also include, where
required, information regarding the removal of cookies and other tracking
h. Enterprise REMEDIES. IN ADDITION
TO ANY REMEDIES AVAILABLE TO Enterprise OR THE APPLICABLE ADVERTISER, PUBLISHER
SHALL FORFEIT ANY AND ALL PUBLISHER FEES DURING THE PERIOD IN WHICH PUBLISHER
WAS IN VIOLATION OF THIS AGREEMENT.
3. Enterprise's Services.
a. Access to Site and Service. Advertiser Program data
compiled by Enterprise including, but not limited to, numbers and calculations
regarding Transactions and associated Publisher Fees ("Program Data"),
will be calculated by Enterprise through the use of Enterprise proprietary
tracking technology and shall be final and binding on You. Any questions
regarding the Program Data must be submitted in writing within fourteen (14)
days of initial appearance in the tracking system; otherwise the Program Data
will be deemed to be accurate and accepted by You. Publisher understands and
agrees that on occasion the Service and/or the Site may be inaccessible,
unavailable or inoperable. Enterprise will attempt to provide the Service on a
continuous basis, but is under no obligation to provide the Service or maintain
the availability of the Site on a continuous or uninterrupted basis.
Enterprise's failure to deliver the Service because of technical difficulties
does not represent a failure to meet the obligations of this Agreement.
b. Tracking Publisher Fees. Enterprise shall track actual
Publisher Fees that should be credited to Publisher's account. Enterprise may,
from time to time in its sole discretion, apply an estimated amount of
Publisher Fees if there is a verified error in Advertiser's tracking code.
c. Access to Tracking and Reporting Tools. Enterprise
shall provide Publisher with access to tracking and reporting tools via the
Site, and to other various support services that may be updated from time to
time on the Site.
d. Support. Support for Publisher's program is available
by contacting Enterprise and reaching the appropriate person or support
e. Payment of Publisher Fees. Subject to other provisions
in this Agreement, Enterprise shall credit Publisher's account with a Publisher
Fee for each qualifying Transaction in accordance with the Advertiser's payout
rate and Advertiser Program terms. On or around the 1st and 15th day of each
calendar month, Enterprise will credit to Publisher any positive balance in
Publisher's account for Transactions reported for the applicable period. Enterprise
shall have no obligation to make payment of any Publisher Fees for which
payment has not cleared to Enterprise of all monies due to Enterprise,
including for all Publisher Fees owed by such Advertiser to all of Advertiser's
Publishers. If Enterprise receives partial payment Enterprise may apply such
partial payment first against the fees due to Enterprise from such Advertiser
and Publisher agrees that it shall pursue any and all legal remedies only
against the applicable Advertiser that has not made funds available to pay sums
due and owing to Publisher for Publisher Fees earned in connection with a
particular Advertiser Program, subject to the terms and conditions of the
applicable Advertiser Program.
All Publisher Fees will be paid in US Dollars ($US).
Notwithstanding anything contained herein to the contrary, no Publisher Fees
will be issued for any amounts due to Publisher that total less than
twenty-five dollars ($25.00) ("Payment Threshold").
Every Publisher must have a unique, valid taxpayer
identification number, valid Social Security Number, or other applicable unique
government identification. Publisher shall be responsible for all applicable
An Advertiser may request that Enterprise, or Enterprise may on
its own initiative, debit from the Publisher Fees an amount equal to a
Publisher Fee previously credited to Publisher's account where: (a) a return or
cancellation has been made with respect to the applicable product and/or
service; (b) there is an instance of a duplicate, fraudulent or incomplete
entry or other similar error with respect to a Customer order; (c) there are
Transactions that do not comply fully with the terms of this Agreement or the
applicable Advertiser Program; (d) there is non-receipt of payment from, or
refund of payment to, the Customer that entered into the subject Transaction;
(e) there is any failure on the part of the Publisher to comply with this
Agreement and or applicable Advertiser Program terms; or (f) any other amounts
paid in error or due Advertiser from Publisher (collectively referred to as a "Reversal").
Unless otherwise set forth in the applicable Advertiser Program, Reversals
requested by an Advertiser in accordance with this Section for Customer refunds
and chargebacks may be applied up to sixty (60) days after the end of the month
in which the applicable Publisher Fee was earned ("Reversal Period").
For the avoidance of doubt, there is no time restriction on any other
Reversals. Advertiser may request that the payment of a Publisher Fee be
postponed for one (1) payment cycle where: (i) Advertiser is verifying a lead
(for Advertiser Programs in which lead generation is a component of the
Transaction); (ii) Advertiser has a product return policy that allows the
underlying purchaser to return the product during the Reversal Period; or (iii)
the applicable Advertiser Program provides for such a postponement. The number
or amount of Transactions, credits for payments and debits for Reversals, as
calculated by Enterprise, shall be final and binding on Publisher.
You acknowledge that, with respect to any Advertiser Program, Your entitlement
to any compensation reported with respect to any tracked activity (if such
activity is reported) stems solely from the terms of your agreement with
the relevant Advertiser and that such Advertiser is solely responsible
for its payment.
Enterprise monitors traffic, Transactions, Publisher Fees and other Advertiser
Program-related activities for potential fraud. If Enterprise suspects that
Your account has been used in a fraudulent manner, Your account may be
deactivated effective immediately and with no notice to You pending further
investigation. Enterprise reserves sole judgment in determining fraud and You
agree to be bound by any and all such determinations. It is the obligation of
Publisher to prove to Enterprise that it has NOT engaged in fraud. If you are
unable to provide Enterprise with satisfactory evidence that You have not
engaged in fraud within seven (7) days of Your Publisher Fees being placed in
"Pending or Delayed Status," then Enterprise may terminate Your account and
cancel payment on the applicable Publisher Fees, at its sole discretion and
without any further obligations to You. For the avoidance of doubt, if You add
Transactions, or inflate Transactions, through the use of fraudulent means of
traffic generation, as determined solely by Enterprise, You will forfeit all of
the Publisher Fees related to that Advertiser Program, and Your account may be
terminated effective immediately.
of Site and Services. You may not use the Site or the Service in
connection with aggregating, soliciting or recruiting Advertisers, other
publishers, other sites or other persons to form or join a marketing,
advertising or similar network.
4. Proprietary Rights.
a. Linking to Advertisers. For each Advertiser Program
that Publisher has applied to and been accepted to, the Advertiser is granting
to Publisher the right to link to the Advertiser's web site or web offers in
accordance with the Advertiser Program terms and this Agreement.
Use of Publisher's Information. Publisher authorizes Enterprise to utilize
Publisher's otherwise protected information subject to the provisions of
Section 5 below related to confidentiality of Publisher's identification and
Grant to Publisher. Subject to this Agreement and the terms of the
applicable Advertiser Program, Enterprise grants to Publisher a revocable,
non-transferable, royalty free, license to use the Site and the applicable
tracking code. Publisher may not remove or alter any copyright, service marks
or trademark notices. Enterprise reserves any and all rights not explicitly
granted in the Agreement.
Party will take commercially reasonable actions designed to protect the
Confidential Information of the other Party from misappropriation and unauthorized
use or disclosure, and at a minimum, will take precautions at least as great as
those taken to protect its own confidential information of a similar nature.
The receiving Party may disclose Confidential Information of the disclosing
Party to the extent necessary to comply with applicable Law. Upon request of
the other Party, or in any event upon any termination or expiration of this
Agreement, each Party will return to the other or destroy all materials, in any
medium, which contain, embody, reflect or reference all or any part of any
Confidential Information of the other Party. This Agreement shall be the
Confidential Information of Enterprise.
Party will be entitled to seek preliminary and/or permanent injunctive relief
from any violation or threatened violation of this Section 5 without the
necessity of proving actual damages or posting any bond or other security.
Information" means all confidential and/or proprietary information and
documents furnished or disclosed by or on behalf of a Party or its affiliates,
no matter when or how furnished or disclosed. Confidential Information
includes, without limitation, (a) all nonpublic information relating to a
Party's or its affiliates' technology, business plans, agreements, promotional
and marketing activities, finances and other business affairs, and (b) all
third party information that a Party or its affiliates is obligated to keep
confidential. Confidential Information may be contained in tangible materials,
such as drawings, data, specifications, reports and computer programs, or may
be in the nature of unwritten knowledge. Confidential Information does not
include any information that (w) has become publicly available without breach
of this Agreement, (x) can be shown by documentation to have been known to the
receiving Party at the time of its receipt from the disclosing Party or its
affiliates, (y) is received from a third party who did not acquire or disclose
such information by a wrongful or tortious act, or (z) can be shown by
documentation to have been independently developed by the receiving Party
without reference to any Confidential Information.
as provided elsewhere herein, Publisher must send all notices relating to this
Agreement in writing via overnight mail or fax: (a) to eBay Enterprise
Marketing Solutions, Inc., 7 South Main Street, Third Floor, Wilkes-Barre PA
18701 with a copy to eBay Enterprise Marketing Solutions, Inc., Attn: Legal
Department, 935 First Avenue, King of Prussia, PA 19406. All notices from
Enterprise shall be sent to the address submitted by You when You sign up for
Agreement shall commence upon Enterprise's acceptance of Your publisher
application and remain in effect until terminated as set forth herein.
party may terminate this agreement at any time. In addition, Enterprise
reserves the right, in its sole and absolute discretion, to terminate an
Advertiser Program, suspend Your participation in an Advertiser Program and/or
remove any Creatives at any time for any reason. Enterprise also reserves the
right to terminate Your access to the Site at any time. Termination notice may
be provided via e-mail and will be effective immediately. Upon termination,
Publisher agrees to immediately remove from its Publisher website(s) any and
all Creatives, Enterprise code or other intellectual property made available to
Publisher in connection with its performance under the Agreement. The
representations, warranties and those obligations that by their terms and context
show the Parties intended them to survive the termination of this Agreement for
any reason, including provisions governing confidentiality, ownership,
indemnification and liability, shall survive the expiration or earlier
termination of this Agreement.
9. Representations and Warranties.
Parties hereby acknowledge and agree that Publisher is solely responsible for
the method in which the Creatives are disseminated. You represent and warrant
that You will not engage in any activities that violate any Advertiser
Program's terms and conditions. Moreover, You represent and warrant that: (a)
Your Publisher website and/or Publisher e-mails are represented by a legitimate
second-level domain name (e.g. yoursite.com is acceptable; however, a shared
server, e.g., sharedsite.com/yoursite, is not acceptable); (b) Your Publisher
website is not offered as a part of a community-based website personal entry or
personal page; (c) Your Publisher website and Publisher e-mails do not
incentivize users to click on Creatives, including by awarding users cash,
points, prizes, and/or contest or sweepstake entries or any other incentives
("Incentives"); (d) Your Publisher Website is not hosted by a free service and
is fully functional at all times and at all levels (no "under construction"
Publisher Websites or any sections thereof are permissible); (e) You will place
or use the Creatives only with the intention of delivering valid Transactions
as determined by, and for the benefit of, the applicable Advertiser; (f) You
will not violate guidelines of any search engines being utilized; (g) You will
not allow the Creatives to be placed on any non-Publisher website without the
prior express written consent of Enterprise and the applicable Advertiser; (h)
You will not use any Creatives or any other Advertiser Program terms and/or
content in connection with aggregating, soliciting or recruiting other
Publishers, Advertisers, other websites or other persons to form or join an
affiliate marketing, advertising or similar network for the purpose of engaging
in business of the type conducted by Enterprise; (i) You will not redirect
traffic to a website other than the website specifically listed by the
applicable Advertiser; (j) Your performance under this Agreement shall not in
any way violate or infringe upon any third party rights, including rights
regarding ownership, trade secrets, trademarks, copyright or patents; (k) You
shall protect, promote and preserve the goodwill associated with the Advertiser
trade name and any Customer relationships in connection with its performance
hereunder; (l) in performing Your obligations and exercising Your rights under
this Agreement, You shall comply with all applicable laws (and all changes in
laws) relating to or affecting this Agreement or the work to be performed
hereunder, and (m) You shall obtain and maintain all permits, licenses, and
consents required in connection therewith.
10. Limitation of Liabilities.
Enterprise will NOT be liable (whether in contract,
warranty, tort (including, but not limited to, negligence), product liability
or other theory), to YOU or any other person or entity for cost of cover, lost
profits, loss of business, data or reputation or for any indirect, incidental,
special, consequential, punitive, or exemplary damages arising out of this
Enterprise's aggregate liability arising under or
with respect to this agreement will in no event exceed fifty percent (50%) of
the total fees paid or accrued by YOU to ENTERPRISE during the three (3) months
prior to the event giving rise to such liability.
SITE AND THE SERVICE 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 SITE AND
THE SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ENTERPRISE
HAS NO LIABILITY,
WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER'S USE OF, OR
INABILITY TO USE, THE SITE OR THE SERVICE AND Enterprise
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER'S USE OF
SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE ADVERTISER PROGRAMS
WILL BE AVAILABLE TO PUBLISHER. Enterprise SHALL not be responsible for THE
failure or other acts or omissions OF ANY ADVERTISER.
Publisher shall indemnify, defend, subject to Section 11(b), and hold harmless,
Enterprise and its respective parents, subsidiaries and affiliates, and each of
their respective directors, officers, employees, agents, successors and assigns
against any third-party claim, suit, action, judgment, allegations, or lawsuits
("Claims"), for any damages, fines, penalties, deficiencies, losses, liabilities,
obligations, costs and expenses (including without limitation reasonable
attorneys' fees, costs related to in-house counsel time, court costs and
witness fees) (collectively "Losses") or any threatened Losses arising
from or in connection with Publisher's breach of this Agreement or intentional
acts or omissions or for Claims of product liability.
Should any Claim give rise to Publisher's duty of indemnification under this
Agreement, Enterprise shall notify Publisher, and Enterprise shall have the
right to assume control of the defense of any such Claim; provided that
Publisher shall reimburse Enterprise for all costs of the defense. If
Enterprise assumes the defense, Publisher shall participate in (at Publisher's
own expense), but not control, the defense of such Claim. Participation in the
defense shall not waive or reduce Publisher's obligations to indemnify or hold
Enterprise harmless. If Publisher is permitted to control the defense,
Enterprise may participate in the defense. In no event shall Publisher settle
any Claim without the express written consent of Enterprise.
12. Severability, Waiver, Remedies Cumulative.
provisions of the Agreement which are determined to be invalid or unenforceable
in any jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability in such jurisdiction, without rendering invalid or
unenforceable the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction. A
Party's waiver of any term or condition of this Agreement shall not be deemed a
continuing waiver. The rights set forth in this Agreement are cumulative and
in addition to those otherwise provided by law and may be exercised
concurrently or separately, and the exercise of any one remedy shall not be
deemed an election of such remedy to the exclusion of other remedies.
Party shall assign or transfer this Agreement, in whole or in part, without the
prior written consent of the other Party, and any such assignment without
consent shall be void, provided that either Party may, upon prior written
notice to the other party, assign or transfer this Agreement, in its entirety
only, to an affiliate capable of performing its obligations hereunder or to an
entity acquiring all or substantially all of the operating assets of the
14. Jurisdiction and Venue.
Agreement shall be construed, governed and enforced under and in accordance
with the internal laws of the Commonwealth of Pennsylvania. Any and all
disputes or controversies whether of law or fact of any nature whatsoever
arising from or with respect to this Agreement shall be decided by arbitration
by the American Arbitration Association ("Arbitrator"), in accordance with the
rules and regulations of that Arbitrator. Arbitration shall take place in
Wilkes Barre, PA.
15. Force Majeure.
shall not be liable to Publisher by reason of failure or delay in the
performance of its obligations hereunder on account of telecommunications,
Internet or network failure or interruption, results of computer hacking, Acts
of God, fires, storms, war, governmental action, labor conditions, earthquakes,
natural disasters or any other cause which is beyond the reasonable control of
making and performing this Agreement, the Parties are acting and shall act as
independent contractors, and neither party is, nor will be deemed to be, an
agent, legal representative, joint venturer or partner of the other party for
17. Entire Agreement; Headings.
Agreement constitutes the entire agreement between the Parties with respect to
the subject matter hereof and supersedes all prior or contemporaneous,
negotiations, representations, agreements or understandings with respect
thereto, whether written or oral. Captions and headings contained in this
Agreement have been included for ease of reference and convenience and shall
not be considered in interpreting or construing this Agreement.
any legal presumption to the contrary, any provisions that by their terms are
intended to survive termination, shall survive termination or expiration of
This agreement was last updated on May 5th, 2015