Terms and conditions
1. ADVERTISING CONTENT
1.1. Advertiser is responsible for providing to Point2Web all aspects of the Adv. materials (copy, text, banners, buttons, text-links, underlying URLs, co-registration paths, pop-ups, pop-unders, subject lines and artwork for promotional email, graphic files and similar online media etc.) required for Point2Web to run the Campaign.
1.2. In the event that Point2Web develops any Adv Materials for the Advertiser at Advertiser’s request (“Custom Adv. Materials”), Advertiser shall use the Custom Adv. Materials only in Campaigns conducted by and through the Point2Web Network and not via any other publisher or publisher network. The Adv. Materials shall conform to Point2Web’s requirements, guidelines and policies applicable to the Point2Web Network, as well as all applicable law and shall meet community standards as to its audience and content
1.3. Advertiser`s Adv. Materials can be approved with Point2Web (“Approved Content”). The Advertiser shall not change or modify Approved Content at any time without Point2Web prior written consent; provided that the Advertiser may, without Point2Web prior written consent, make non-material changes (e.g., resizing an approved advertisement to meet technical requirements).
1.4. Company is not able to check and control all Adv. Materials, is not responsible for the content of and form of them. It is the Advertiser’s responsibility to ensure that Adv. Materials comply with the applicable laws, regulations, applicable Google, Facebook, Snapchat and other policies, industry standards in the territory in which Adv. are displayed. Advertiser agrees to review and confirm that the Adv. and any subsequent modifications, pixel placement and any conditions set forth in the Agreement are properly functioning. Therefore, the Advertiser undertakes to check all the Adv. content before providing it to the Company and, in case of suspected inappropriate content, urgently notify the Company and ask for blocking the relevant Adv. with inappropriate content.
1.5. Company notifies the Advertiser that in the event that regulatory authorities contact the Company with claims regarding Adv. materials, Company will provide such authorities with the contacts of the Advertiser, who is obliged to resolve any such requirements or claims independently.
1.6. Company can decide, in its sole discretion, whether the content, materials provided by the Advertiser comply with their standards. The Advertiser agrees to cooperate in promptly editing, changing or stopping any Adv. that the Company in good faith believes to be in violation of its advertising and other standards.
1.7. Company reserves the right to reject or cancel any Adv. (or any element thereof), Campaign, at any time, for any reason whatsoever, including belief by Company that the relevant Adv. material or activity may subject the Company to criminal or civil liability or is materially adverse to Company’s business interests. The fact that the Company has not rejected an Adv. shall in no way reduce, limit or otherwise affect the Advertiser’s responsibility and obligations under this Agreement. In the event Company exercises its right to reject hereunder, Company shall notify the Advertiser in writing.
1.8. Advertiser agrees to accept sole responsibility for any liability arising out of or relating to (1) the Adv(s), (2) any claims made in the connection to the Adv(s), including health and earnings claims, (3) any material to which Users can link through any of the Adv(s) and to indemnify Company from any such liability or litigation as described more fully below.
1.9. The Adv. may appear and/or be distributed at any point of placement that Company and/or Affiliates from the Point2Web Network may determine in their sole discretion
1.10. Each Adv. must include the special transaction tracking code. Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Adv. code.
2.1. This Section applies only to Campaigns that are cost-per-action/acquisitions (“CPA”) sales generation campaigns which may include, but shall not be limited to, Users signing up for an email newsletter, s entering a contest, registering on a website, completing a survey, downloading trial software for printing a coupon and monetary transaction completed by User making a purchase by using a credit card or alternative payment method (“Sales Generation Campaigns”).
2.2. This Section applies only to Campaigns that are cost-per-mille/cost per thousand (“CPM”). For CPM Campaigns, the Advertiser shall pay for each impression, social media advertisement or impression and/or email delivered by Point2Web and Point2Web shall invoice the Advertiser based on Point2Web’s impression, social media advertisement or impression, and/or email counts. In the event of a discrepancy of five percent (5%) or more between Point2Web’s impression, social media advertisement or impression, and/or email counts and the Advertiser’s impression counts, Point2Web statistics shall prevail.
2.3. In the event that there is a shortfall in impression, social media advertisement or impression, and/or email counts as of the stop date of a CPM Campaign, Point2Web reserves the right to provide 30 (thirty) days, as Advertiser’s sole remedy, “make good” impression, social media advertisement or impression, and/or email counts to provide the Advertiser with the number of impressions, advertising or social media impressions and/or the number of emails specified in this Agreement
2.4. This Section applies only to Campaigns that are cost-per-click (“CPC”) which may include, but shall not be limited to, click on Advs or sponsored links. For CPC Campaigns, cost per click is calculated by the formula: advertising costs/number of clicks. The Advertiser may, from time to time, transfer data to Point2Web associated with Users, or Point2Web may obtain such data of Users, including but not limited to a User’s name, email address, and telephone number (“CPC User Data”). Point2Web shall have the right to transfer CPC User Data to any Point2Web Advertiser for the purpose of allowing such Point2Web Advertiser to determine and indicate to Point2Web the price such Point2Web Advertiser will pay Point2Web for a click by the User and/or the accompanying CPC User Data.
2.5. CPC User Data shall be Confidential Information of the Advertiser and shall not otherwise be disclosed to third parties, provided that the foregoing restriction shall not apply to: (i) internal, non-commercial use of the CPC UserData, and Point2Web shall have the right to use CPC UserData for technical, testing, troubleshooting, and other internal uses; or (ii) any CPC User Data that is collected by Point2Web or obtained via a Point2Web Website.
Email Marketing Campaigns
This Section applies to a Campaign that includes an email marketing component and can be either a Sale Generation Campaign or a CPM Campaign. Specifically, the Adv. Materials provided by Advertiser for each email marketing message shall: (i) include a clearly-displayed functioning return electronic mail address that a recipient may use to decline to receive future email messages from Advertiser, and which remains active for at least thirty (30) days from the date that the underlying email message is delivered; (ii) include a valid physical postal address of Advertiser; (iii) contain a notice indicating that the email message contains a commercial message; (iv) not contain any false or misleading information (including, without limitation, a misleading subject line or inaccurate “from line”); (v) not obscure, cloak or otherwise falsify transmission data including, without limitation, applicable domain names; and (vi) not be sent for the purpose of harvesting email addresses for future commercial emails.
3. TRACKING AND PAYMENT
3.1. Advertiser agrees to pay Company Consideration for all compensable advertising Traffic provided by Company’s Affiliates.
3.2. Advertiser will pay the Company an amount equal to the number of successful Actions of the Campaign.
3.3. The Consideration for the purposes of billing and payment shall be based on the Company’s reporting (tracking) system. The Company will provide the Advertiser with automatic reports at least once a month. The Parties agree that Company’s reports will be deemed as sole and decisive evidence with respect to amounts owed hereunder and shall be binding upon the Advertiser. The Advertiser can perform its own traffic calculations. In the event of a discrepancy, payment will be based on the calculation whichever number is greater.
3.4. On the basis of the Company’s reporting (tracking) system data, the Company shall confirm with Advertiser the amount to be paid for the relevant reporting period (90 calendar days) within five (5) calendar days via email from the last date of the relevant reporting period. Subject to the Advertiser’s confirmation of the sum amount, the Company shall send to the Advertiser an invoice by email with the confirmed payment amount within five (5) calendar days after such confirmation received via email.
3.5. Failure to send an invoice shall not constitute a waiver of any amounts due.
3.6. In the event that Point2Web does not receive a written notification of a disputed invoice for example, in case of cancellation of leads identified as “Invalid Leads” with rationale and adequate documented support therefore specifically set forth therein within 10 (ten) calendar days from the date of the invoice, such invoice will be deemed valid and payable and may not thereafter be disputed.
3.7. The payable actions generated as a result of improper pixel placement, website downtime, or non-working redirect tracking links will be charged at an hourly rate equal to the highest actual “click to conversion” rate during the preceding seven (7) day period during the Campaign, or if an actual “click to conversion” rate is unavailable, then a reasonable “click to conversion” rate based on comparable Campaigns. Company will notify Advertiser of any payable actions due under these “click to conversion” rates at the time of invoicing.
3.8. Payments must be made by the Advertiser within 10 calendar days of the end of the reporting period (ie. based on net terms, “Payment Terms” in the campaign section of this Agreement), and no extension of payment due date will be allowed without express written authorization from the Company.
3.9. All payments must be in the U.S. Dollars unless otherwise agreed by the Parties.
3.10. Where the Advertiser fails to pay the invoices under the Agreement on time, Point2Web reserves the right to require prepayment for further Services to be provided under the Agreement.
3.11. Each party has to be solely and separately responsible for its own taxes, fees or other levies. The Advertiser bears all payment costs in connection with bank transfers. The charges/fees for additional services not specified in this Agreement are subject to negotiation and additional agreement between the Parties.
4. REPRESENTATIONS AND WARRANTIES
ADVERTISER REPRESENTATIONS AND WARRANTIES
4.1. Advertiser represents and warrants that:
4.1.1. they will not use or attempt to use the Services for any purpose that violate the terms of this Agreement or any law or regulation;
4.1.2. they will not use the Services to disseminate material, including, but not limited to, that which is illegal, obscene, pornographic, shows nudity, indecent, offensive to the average reasonable person, threatening, abusive, libelous, defamatory, discriminatory, promotes racism, bigotry or hatred; infringes on any intellectual property or is in violation of any copyright or trademark law; in violation of any right of privacy; that promotes harmful, unlawful, seditious or criminal activity; that could give rise to civil liability; that contains viruses, worms, Trojan Horse or other harmful files; or that appears or purports to be from someone other than the Advertiser or that impersonates another person or entity or infringes on their intellectual property or right to publicity;
4.1.3. in the event of any dispute or claim, the Advertiser has all the necessary documents and evidence in order to resolve the issue;
4.1.4. that all Adv. materials provided by the Advertiser compile with all laws and regulations, including advertising laws;
4.1.5. that Advertiser holds the necessary rights to permit the use of the Adv. materials by the Company, including allowing their transfer to the third parties – Affiliates of the Company, for the purposes of this Agreement and that the use, reproduction, distribution or transmission of the Adv. materials will not violate any laws or any rights of third parties;
4.1.6. Adv. materials are not directed to children under eighteen (18) years of age;
4.1.7. the links contained in the Adv. are directed to the intended destination and will not be changed without prior notice to Company;
4.1.8. all suppression lists provided to the Company are current and accurate.
4.2. Advertiser agrees to provide at least five (5) business day notice to Company of any scheduled website maintenance or downtime, or of any change in the Adv creatives, payouts, links, websites or other Adv. content. This notice period is necessary in order to allow the Company enough time to cancel the current running Adv. Campaign and notify their Affiliates of the cancellation of changes needed.
4.3. Advertiser acknowledges and agrees that Company is not responsible for the conduct of its third-party Affiliates, the content of their data lists or any claims by Advertiser, a third-party or government entity that an Affiliate has violated any law, regulation or right of a third-party, as any such claim must be made directly against an Affiliate and Advertiser specifically waives its right to pursue any action against Company that is based on or derived from the action or inaction of an Affiliate. Affiliates are not agents of the Company, and Company makes no assertion to indemnify Advertiser for any acts of such Affiliates.
COMPANY REPRESENTATIONS AND WARRANTIES
4.5. Сompany represents and warrants that: (i) it shall perform its obligations under the Agreement in a professional and workmanlike manner; and (ii) it shall require its Affiliates to agree in writing to make the Campaign in compliance with Terms of Service at point2web.everflowclient.io/affiliate/signup.
4.6. Advertiser acknowledges and agrees that Сompany is merely a venue that facilitates Advertiser`s Campaigns and Сompany will not be responsible for policing or monitoring any Adv. Materials or Affiliates. Neither will Сompany be liable for the actions or omissions of its Affiliates unless such action or omission is the direct result of a Company’s breach of its obligations under the Agreement
4.7. Company declares and notifies the Advertiser in advance that providing Services is carried out by interaction with a large number of third parties and their property (instruments) (for example, websites, networking platforms such as Facebook, Twitter, etc.), while the Company does not affect the rules of work of such third parties established in their Terms and Conditions and/or other documents and indicates that their terms and conditions may prevail over any other rules, including those established by this Agreement. The Company cannot influence this and is not responsible for the consequences if they affect the provision of Services under this Agreement.
4.8. In the process of the Agreement performance, the Company may need an access to the websites or platforms of the Advertiser These websites or platforms may require to accept their Terms and Conditions for their use placed on such websites/platforms. In the event that the provisions of such Terms and Conditions are inconsistent with the provisions of this Agreement, in any possible case, if it is permissible, the provisions of this Agreement will always prevail and supersede over any of such Terms and Conditions or any other similar document, agreement.
COMPLIANCE WITH LAWS
4.9. Each Party represents and warrants that it will comply with and perform its obligations in a manner that accords with all applicable laws (including identifying and procuring required permits, consents, certificates, approvals and inspections) required from such Party or for which such Party is responsible hereunder, including, but not limited to, all federal, state and local laws, rules, regulations and orders (collectively, “Applicable Laws”).
4.10. Each Party further represents and warrants that it will obtain (if necessary) consents under all Applicable Laws, including but not limited to (if applicable) the Telephone Consumer Protection Act (47 USC § 227) and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200) (the “TCPA”), the Telemarketing Sales Rule, 16 C.F.R § 310 et seq., the Do Not Call Implementation Act (P.L.108-10, 117 Stat. 557) (“CAN-SPAM”), the Financial Services Modernization Act of 1999 (the “Gramm–Leach–Bliley Act”), the California Consumer Privacy Act (“CCPA”) and any applicable state consumer protection laws and regulations.
4.11. Each Party further represents and warrants that (i) it will not engage in any unfair, deceptive or abusive acts or practices, and (ii) it will reasonably cooperate with the other Party in connection with any claims or requests from third parties related to the performance of this Agreement, including, without limitation, claims or requests from any governmental entity or regulatory body.
5. INVALID ACTIONS/LOW QUALITY
5.1. Company monitors Traffic for potential invalid actions. If the Company suspects that the Traffic was generated fraudulently, such traffic is not taken into account.
5.2. Point2Web and the Advertiser approve the KPIs of each advertising Campaign. But these KPIs can be not achieved perfectly or can be partly achieved for several reasons that are beyond the Parties control. The Parties agree that failure to meet KPIs in full is not an automatic admission that the Services were substandard. In this case, the Parties proceed to the discussion and, in the process of negotiations, mutually decide the amount of the agreed consideration should be paid by the Advertiser to the Company and/or other options how the Parties want to close the deal.
6. INTELLECTUAL PROPERTY. POINT2WEB LICENSE
6.1. Subject to the Agreement, Point2Web grants to Advertiser a revocable, non-transferable, royalty free, international license to display on and distribute through the Point2Web Network, Affiliate emails and/or other approved marketing channels, the Adv. and any and all associated trademarks, service marks, trade names and/or copyrighted materials (“Advertiser`s Intellectual Property Content”) that Advertiser provides to Company for the purposes of promoting Adv. through the Point2Web Network to the Users.
6.2. Subject to the Agreement, Advertiser grants to Company a non-exclusive, irrevocable, perpetual, royalty-free, worldwide license to display and distribute Advertiser’s Intellectual Property Content through the Point2Web Affiliate Network, and also allows Point2Web to grant sub-licenses with the same scope of rights to their Affiliates.
6.3. Advertiser guarantees that has all applicable and necessary rights for the Adv. materials, including IP rights for the objects he uses and transfers to the Company for the purpose of the Services provision and such objects do not include any material that infringes the rights of any third party, including copyright and the related rights or is not in violation of any law. In case of receiving by the Company a claim from the copyright holder or any other third party, the Advertiser undertakes to cover all Company’s costs, arised from such a claim and to settle the conflict solely.
6.4. Advertiser may not remove or alter any copyright or trademark notices from the objects owned by the Company (“Company’s Intellectual Property Content”). The Company’s Intellectual Property Content and other matters related to the Point2Web Network are protected under applicable copyright, trademark and other proprietary rights. The use, copying, redistribution and/or publication by Advertiser any part of the Company’s Intellectual Property Content, other than as expressly permitted hereunder, are strictly prohibited. Advertiser does not acquire any ownership rights to the Company’s Intellectual Property Content.
6.5. Company reserves the right to use Advertiser’s brand, logo, trademark or other identifying information on the Company’s website, in promotional materials, brochures and other mediums of communication for the purpose of promotion without prior Advertiser`s consent.
7. DISCLAIMER OF WARRANTY. LIMITATION OF LIABILITY
7.1. COMPANY DOES NOT MAKE ANY WARRANTY THAT THE SERVICES WILL MEET ADVERTISERS REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. COMPANY DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE SERVICES. COMPANY DOES NOT GUARANTEE QUANTITY OF TRAFFIC OR ANY TRAFFIC FOR ANY PARTICULAR CAMPAIGN.
7.2. IN NO EVENT WILL THE COMPANY BE LIABLE FOR (a) LOSS OF ANTICIPATED PROFITS, BUSINESS, REVENUE, GOODWILL OR OTHER LOSSES INCURRED IN CONNECTION WITH THE SERVICES PROVIDED HEREUNDER OR THE FAILURE OF SUCH SERVICES, SUCH CLAIMS BEING EXPRESSLY WAIVED; (b) FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, DIRECTLY OR INDIRECTLY ARISING FROM THE PROVISION OF THESE SERVICES; (c) ACTIONS OR INACTIONS OF IT’S AFFILIATES OR ANY RULES/REGULATIONS THAT ITS AFFILIATES HAVE VIOLATED. ADVERTISER’S SOLE REMEDY SHALL BE AN ACTION AGAINST THAT AFFILIATES.
8.1. Advertiser will defend, indemnify and hold Company and its directors, officers, employees, shareholders, members, agents, successors and assigns harmless from and against any loss, damage, settlement, cost, expense and any other liability (including reasonable attorneys’ fees and costs) (collectively, “Losses”) (i) related to or arising out of any third party allegation, claim, lawsuit or proceeding (a “Claim”) based on an allegation that, if true, would constitute a breach of a representation, warranty, covenant or obligation under the Agreement by the indemnifying party; (ii) related to or arising out of a Claim that alleges that the Ad Materials, Linked Content, Landing Pages, Advertiser Products or business practices associated with the Ad Materials, Advertiser’s marketing practices and/or the data or content provided by Advertiser to Company violate Applicable Law, or are otherwise illegal, defamatory, obscene violate a consumer’s online privacy or other rights or infringe upon a third party’s intellectual property rights.
8.2. In the event of any breach of this Agreement by the Company or of any losses or injuries to the Advertiser arising out of this Agreement for which the Company is liable, the Company’s total cumulative liability for such breaches, losses and injuries will be the actual value of the damages or losses caused to the Advertiser but in no event will this amount exceed the total amount paid by Advertiser to Company under this Agreement DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR SUCH BREACH/LOSSES/INJURIES.
9. NON-CIRCUMVENTION. NON-SOLICITATION
9.1. During the term of this Agreement and for a period of twelve (12) months after the its termination, Advertiser agrees not, directly or indirectly, for themselves or any other individual or entity, to solicit to hire or employ any employee, contractor, publisher, affiliate, marketer, agent or vendor of the Company without the Company’s prior written approval, which may be withheld in Company’s sole discretion.
9.2. In the process of Services provision under this Agreement, the Advertiser may receive data that the certain Affiliate cooperates with the Company. During the term of the Agreement, and for the twelve (12) month period after its termination, Advertiser agrees not to use such data about any Affiliates to solicit such Affiliates to enter into an agreement with Advertiser that would displace Company in its relationship with such Affiliates, or otherwise obtain marketing services from such Affiliates similar to those provided hereunder; provided, however, that this prohibition shall not apply to Affiliates with whom Advertiser had a business relationship that pre-dates the date of the Agreement.
9.3. In case of violation of conditions provided in this Section 9 of the Agreement, the Company will have the right to demand from the Advertiser to pay liquidated damages in the amount equal to one hundred percent (100%) of the fees paid by the Advertiser to the Company for the previous twelve (12) months
9.4. Company shall have no obligation to cooperate with the Advertiser exclusively or vertically with Advertiser`s affiliate companies. Company reserves the right to provide their services to any of the Advertiser’s competitors and make no promise of exclusivity in any particular market segment. Advertisers further acknowledge and agree that Company’s employees and contractors may also be Company’s customers or merchants and that they may compete with the Advertiser, although they may not use the Advertiser’s confidential information for the purposes other than the purposes of this Agreement and within its framework.
10.1. Both parties acknowledge that in the course of dealing with each other they will be exposed to information of the other party, its customers, providers and vendors etc. and may from time to time gain access to the other’s trade secrets, proprietary non-public business methods, knowhow and plans, pricing, cost and other financial information, organizational, business data, data sources, data analysis and processing methodologies, clients lists and contacts that are respective confidential information (collectively, “Confidential Information”). Both Parties specifically agree to keep such information strictly confidential and safe.
10.2. All the information (written, oral or in any and all forms) related to the activity under the Agreement and also provided by one of the Parties to the other Party with reference to the Agreement, as well as the Agreement, its content, the cost of Services, settlements are considered strictly confidential even if such information is not marked as confidential. Each Party shall comply with its obligations under all data protection laws in respect of the Services provided under this Agreement.
10.3. Affiliate`s data is confidential. Company can provide only specific Affiliate`s data to Advertisers, upon their request, such as Affiliate`s ID – their account number on the Point2Web Network, that does not identify Affiliates and does not give the ability for Advertisers to contact them. Advertisers can use these Affiliate ID to understand the performance of Campaign and control the Campaign Actions.
10.4. If Adv. Materials are created by the Company and/or Affiliates, the Advertiser may only access them upon written request.
10.5. The Parties agree that the Company will not disclose to the Advertiser data on the sources of collection of email marketing list sources, collected by their Affiliates. This information applies to the Company’s Confidential Information.
10.6. The Parties agree to safeguard and protect the confidentiality of each other’s Confidential information and to follow appropriate procedures when sharing any information with external accounting firms, legal counsels, state and federal tax services or other necessary persons for the daily operation of their respective businesses. The Parties agree to give prior written notification to the other Party before releasing any information of the other, to any government or law enforcement agency that requests such information or in response to any subpoena or other legal process
10.7. Both Parties acknowledge and agree that any breach of these confidentiality provisions would cause irreparable harm to the other and both Parties agree that the non-breaching Party may demand compensation for the damages received and also payment by the other Party a fine of 10,000 US dollars for each violation related to Confidential information.
10.8. Upon termination of this relationship both Parties agree to return or destroy all Confidential information of the other Party that is in their possession.
10.9. This Section will be effective during the Agreement validity period and 5 (five) years after its termination.
11. TERM OF THE AGREEMENT. TERMINATION
11.1. This Agreement shall enter into force from the moment of its signing by the authorized representatives of the Parties and shall remain in effect during 12 months but in any cases till fulfillment by the Parties their obligations hereunder in full. If the Parties do not declare their desire to terminate the Agreement 30 calendar days before the end of the 12 months term of the Agreement, the term of the Agreement is considered to be prolonged for the next 12 months without changing the previously agreed conditions, if other is not agreed by the Parties.
11.2. Each Party may terminate this Agreement upon written notice sent to the other Party 30 (thirty) calendar days before such termination takes place. Notification sent by e-mail or other Means of communication agreed by the Parties is considered to be properly sent.
12. DISPUTE RESOLUTION AND APPLICABLE LAW. MEDIATIO
12.1. If any dispute arises between the Parties concerning this Agreement that is not resolved by mutual agreement, the Parties must attempt to resolve the dispute in mediation as a condition precedent to any Party commencing litigation. In such an event, the Parties will participate in good faith in a mediation process in which a neutral mediator assists and facilitates the Parties’ efforts to reach a mutually acceptable resolution of the dispute. The mediator has no authority to force a settlement on the Parties. The mediator is to be selected by mutual agreement of the Parties, but in the absence of agreement, each Party must select an individual and those two individuals will jointly select a mediator.
12.2. The Parties may share equally the cost of compensating the mediator. Each Party will bear its own fees and expenses of any mediation.
12.3. The schedule and time allowed for mediation must be acceptable to both Parties.
12.4. The Parties and the mediator will comply with all applicable laws governing the confidentiality of mediation.
12.5. The Parties will use their best efforts to complete any mediation within 60 calendar days after one Party notifies the other of a dispute requiring mediation.
12.6. Each Party agrees to keep all disputes and mediation proceedings strictly confidential, except for the disclosure of information required in the ordinary course of business of the Parties or as required by applicable law or regulation. Any time limitation (such as the statute of limitations or laches) that would bar litigation of a claim shall also bar mediation of the claim. If any provision of this mediation program is declared invalid by any court, the remaining provisions shall not be affected thereby and shall remain fully enforceable.
12.7. This Agreement and all rights and obligations hereunder, including matters of construction, validity and performance, will be governed by and construed according to the laws of the state of Wyoming.
12.8. If the Parties have taken all necessary and possible measures to resolve dispute through negotiations, involving a mediator, but these measures have not yielded the expected result, the Parties may apply to the court to resolve the dispute. In this case any action under this Agreement will be brought in a federal or state court of competent jurisdiction in Wyoming.
12.9. Any disputes under this Agreement will take place on an individual basis. This Agreement does not allow class or collection actions.
12.10. In the event of any legal action or proceeding to interpret or enforce the provisions of this Agreement, the prevailing or non-defaulting Party shall be entitled to an award of its reasonable costs, expenses and attorneys’ fees incurred in such action and in any appeal or related action therefrom, in addition to all other remedies.
13. PRIVACY COMPLIANCE
13.1. Company acknowledges that the Advertiser may process the Personal Data of the Users and should take any measures to prevent infringement of their privacy rights.
13.2. Advertiser agrees that its marketing and data collection practices shall comply with the California Consumer Privacy Act (CCPA), the United Kingdom Data Protection Act of 1998 (as amended), the General Data Protection Regulation (GDPR) (EU) 2016/679.
13.3. Advertiser represents and warrants that its data collection practices are performed in a manner that obtains all necessary consents from Users and that data is stored using required industry-standards and security protocols
13.4. Advertiser agrees to be compliant with all laws and regulations in the sphere of personal data protection and privacy and ensures that appropriate technical and organizational measures shall be taken against unauthorized or unlawful processing of the Personal Data and against accidental loss, destruction or damage to the Personal Data.
FTC ADVERTISING COMPLIANCE
13.5. Advertiser shall not use practices, which include, but not limited: (i) phishing; (ii) cybersquatting; (iii) typosquatting combosquatting.
13.6. Advertiser shall operate in compliance with Section 5 of the Federal Trade Commission Act issued by the Federal Trade Commission (“FTC”) and (ii) the Direct Marketing Association’s Best Practices for Online Advertising and Publisher Marketing.
13.7. Advertiser agrees to comply with the FTC’s Endorsement Guides, with respect to any endorsements made as part of its services hereunder, including, without limitation, properly disclosing that Advertiser receives consideration for reviewing, promoting Adv. or marketing Services.
13.8. Where email marketing is implemented, the following terms shall apply: Adv. and email addresses supplied by the Advertiser shall comply with the CAN-SPAM Act of 2003, California Business & Professions Code § 17529, the Canadian Anti-Spam Law (“CASL”), Germany’s anti-spam legislation (including the Federal Data Protection Act, the Act against Unfair Competition, and the Telemedia Act), Federal Trade Commission implementing regulations and any and all relevant laws and regulations.
14. GENERAL TERMS
ASSIGNMENT AND BINDING AFFECT
14.1. Advertiser will not assign its rights and obligations to the third party hereunder without the prior written consent of the Company. Advertiser represents that it will not take any action such as liquidation, dissolution or merger to avoid its obligations hereunder, and that Company may pursue civil action against Advertiser in the event such action occurs, as allowed by law.
RELATIONSHIP OF THE PARTIES
14.2. The relationship between the Parties is that of independent contractors. Nothing in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner.
14.3. If any provision of this Agreement is determined to be invalid, illegal or unenforceable under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the Parties, and all other provisions of the Agreement will remain in full force and effect.
14.4. Parties shall not be held liable in case obligations were not implemented as consequence of force-majeure circumstances (Force-majeure), which occurred following the Agreement signing and which the Parties could not have foreseen or prevented. Such circumstances shall include but not limited to earthquakes, flooding, fire, war, military actions and state of emergency, strikes, termination of the activities of communication means, acts of state bodies, etc. in case of which implementation of Agreement obligations becomes impossible.
14.5. If a Party fails to fulfill its obligations in time because of the Force-majeure, such Party in 24 hours from the date the Force-majeure effect begins shall send to the other Party a written notice of partial or complete non-fulfillment of its obligations under the Agreement. The Party, which fails to timely send notification according to this section hereof, shall indemnify to the other P arty all damages and losses incurred due the obligations were not fulfilled property and timely.
14.6. If the Force-majeure lasts more than 3 (three months), the Parties have agreed to start negotiations to agree further interaction flow under the Agreement.
14.7. Advertiser won’t make any public statement, announcement or press release regarding this Agreement or relationship with the Company without the prior written consent of the Company.
14.8. The Parties shall consider electronic notifications, correspondence via Means of Communication an appropriate and sufficient way to carry out electronic documents.
14.9. The Parties confirm that the Means of communication agreed are considered official correspondence and screenshots from such Means of communication can be presented as proper evidence of facts in the process of cooperation between the Parties.
14.10. The present Agreement is signed in 2 equally valid copies in English, one copy is for each Party.
14.11. For the purposes of this Agreement, this Agreement, changes, amendments to the Agreement and any other documents signed via electronic services such as Signrequest, DocuSign or similar services for electronic signature, and/or scanned copies shall be considered valid and have full legal force.
14.12. This Agreement may be modified or revoked only by a written instrument executed by both Parties.
14.13. Without derogating from the generality of the foregoing, in the event that the terms of this Agreement are in conflict to the terms of any other agreement, provision, quote, order, acknowledgment or other communications between the Parties, the terms provided herein shall prevail over such conflicting terms (even if the conflicting terms are incorporated in a written instrument signed by the Parties herein after the execution of this Agreement.