MOJO MEDIA, LLC
LIST MANAGEMENT AGREEMENT
STANDARD TERMS AND CONDITIONS
MOJO MEDIA, LLC, a Florida Limited Liability Company (“Company”), and List Owner, as defined in that certain List Management Order (“LMO”), collectively the “Parties” hereto, hereby enter into this List Management Agreement (the “Agreement”), dated as of the Effective Date set forth in the corresponding LMO executed between the Parties. Such LMO is expressly incorporated by reference herein and made a part hereof. Company is placing advertising on behalf of the List Owner and the Parties hereby expressly agree that the advertising services to be provided by Company to List Owner, as specified in the LMO (the “Services”) shall be governed by the following Standard Terms and Conditions which will govern the purchase of advertising services from Company by List Owner and the provision of advertising services by Company. The type and nature of the Services to be provided by Company shall be hereafter agreed upon from time to time and shall be set forth in writing on such LMO and executed, in writing, by both Parties to this Agreement. This Agreement between the Parties shall constitute a binding agreement, the terms and conditions of which shall apply to each LMO and the terms of the LMO are hereby fully incorporated herein.
WHEREAS, List Owner procures, compiles, owns and maintains a proprietary computerized database composed of permission based email addresses and related consumer information (hereinafter “Database or Data”); and
WHEREAS, Company is engaged in the business of marketing using a variety of products via the Internet and other marketing channels using List Owner’s Data; and
WHEREAS, List Owner and Company wish to engage in a marketing program as specified in the List Management Order and governed by this Agreement; and
WHEREAS, List Owner shall furnish Company with the Database for use in Company’s rendering of Services.
Now, therefore, in consideration of the premises set forth above, the consideration set forth in the LMO and the mutual promises, covenants, agreements and conditions stated herein, the Parties hereby agree as follows:
- OWNERSHIP OF MATERIALS AND INTELLECTUAL PROPERTY.
1.1 All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Company or its agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Company to provide the Services to List Owner, including, without limitation, all intellectual property, copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain Company’s sole and exclusive property, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilized, developed, or disclosed by Company during the term of this Agreement and nothing in this Agreement shall convey any right, title, or interest to List Owner, or its agents.
1.2. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on any such software is expressly forbidden except as provided herein in this Agreement. Excluding the Database, any user response and data derived there from shall be the sole and exclusive property of Company and shall become the confidential information of Company.
1.3 All materials, including but not limited to any computer software (in object code and source code form), Data Base or information developed or provided by List Owner pursuant to this Agreement, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and shall remain List Owners sole and exclusive property.
1.4. Excluding the Database, any user response and data derived thereof shall be the sole and exclusive property of Company and shall become the confidential information of Company.
1.5. List Owner shall be responsible for any violation of patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.
2.1. Database Management and Email Delivery, and / Mobile Marketing
2.1.1. Upon delivery of the Database to Company, Company will import the Database into its email delivery system (the “Company Email System”), which will enable Company to send commercial email to those individuals included within the Database (the “Consumers”). During this process, Company may re-brand the list.
2.1.2. In addition to the Database delivered upon execution of this Agreement, List Owner will deliver to Company real time feeds in addition to the list, including any request to unsubscribe.
2.1.3. Company will use industry standard best practices to safeguard the Database, but makes no guarantee against third party conduct not within its control.
2.1.4. Company and List Owner may specify in the LMO type of campaign, cost per action, quantity, price, territory, term, or any other term the Parties deem necessary.
2.1.5. Company may use a third party agent to assist with its obligations under the terms of this agreement. Company may use the Database for email, telemarketing (using land line telephones and cell phones) and direct mail prospecting and as may be specified in the LMO. Company may use the Database to prospect on behalf of itself and/or third parties, subject to the restrictions contained in this Agreement. Company may transfer the Database to a service provider for the purpose of message delivery and or suppression file management. Any such transfer shall be subject to restrictions at least as restrictive as those found in this Agreement. The quantity, Format and Delivery Date of the List shall be fully set forth in the LMO.
2.2. Advertiser Sourcing and email Delivery.
2.2.1. Company in its sole and absolute discretion shall locate and use appropriate promotional and/or advertising campaigns to be delivered to the Consumers(“Campaigns”).
2.2.2. Company shall have sole and absolute discretion in the creation of the “subject” and “from” lines used in promotional emails; provided, that such action is in accordance with all applicable Federal and State laws and does not infringe on any other party’s intellectual property rights.
2.3. Mobile Marketing
2.3.1. List Owner represents and warrants that it has received consent from all of the individuals in the Database, authorizing List Owner and List Owner’s Affiliates to deliver the Marketing Messages as contemplated hereunder. In the event that List Owner has not received consent from individuals in the Database, authorizing List Owner and List Owner’s Affiliates to deliver the Marketing Messages as contemplated hereunder, List Owner shall notify Company.
2.3.2. List Owner agrees and understands that Company may use the Database in conjunction with any Mobile Marketing campaign that may include sending SMS messages.
2.3.3. Compliance Guidelines; Program Certification. Company shall comply with all applicable laws, rules, regulations, orders and directives, including without limitation any governing, advertising, privacy or disclosures to customers. Company shall further reasonably comply with the Mobile Marketing Association published best practices (www.mmaglobal.com) as well as all applicable Wireless Carrier best practice, acceptable use policies or any other Wireless Carrier published documentation or guidelines (“Guidelines”). Wireless Carrier Guidelines may be modified at the sole discretion of the Wireless Carrier(s) and without notice.
3.1 List Owner hereby grants, and Company hereby accepts, a non-exclusive, non-transferable, revocable worldwide license to manage, make use and have access to the Database as needed to carry out its obligations hereunder subject to the terms and conditions set forth in this Agreement. List Owner expressly grants a license to cache materials distributed or made available for distribution via the Services rendered hereunder; including content supplied by third parties, and agrees that such caching is not an infringement of any of List Owner’s intellectual property rights or any third party’s intellectual property rights. List Owner expressly grants a license to Company to provide the Database to third party vendors for the purpose of target marketing and unsubscribe/data management and scrub. List Owner hereby grants Company a limited right to use its trademarks, marks, logos, if any, for the limited purpose of permitting Company to fulfill its duties under this Agreement. The limited trademark use rights granted under this section shall terminate upon termination of this Agreement.
- OBLIGATIONS OF LIST OWNER.
4.2. Ownership of the Data. The Parties expressly acknowledge and agree that title to the Database shall at all times remain exclusively in List Owner. Company may, in its sole discretion, keep such copies of the Database and records pertaining to the Database as may be necessary to demonstrate compliance with this Agreement and laws with respect to its use of the Database.
4.3. List Owner Advertising Creative. To the extent List Owner provides creative(s) or email messages for distribution, such email messages shall be fully compliant with the CAN SPAM Act of 2003. If List Owner’s email messages do not comply with applicable law in all respects, Company reserves the right to revise to transmit any such message.
4.4. Suppression List(s). Company receives from its third-party service providers a list containing e-mail addresses of individuals and/or entities that have expressed that they do not wish to receive subsequent e-mail marketing from Company and/or List Owner (“Suppression List(s)”). List Owner agrees to use the Suppression List(s) for the sole purpose of removing any e-mail addresses contained therein from the applicable List Owner owned and/or controlled mailing lists or to otherwise act to suppress from the receipt of future commercial e-mail messages such e-mail addresses. List Owner agrees to review Suppression List(s) at least twice weekly and to suppress from List Owner’s database any e-mail addresses contained therein within one (1) business day of such review. List Owner further agrees to process any unsubscribe requests sent to List Owner within five (5) business days of the receipt of such requests. In the absence of receiving any such unsubscribe information from List Owner, Company may conclude that no new unsubscribe requests have been received by List Owner. List Owner hereby expressly agrees not to use the Suppression List(s) for purposes of e-mail marketing (or provide the Suppression List(s) to any third party for said purposes) and will not send, or cause to be sent, any commercial e-mail messages to any e-mail addresses contained in any Suppression List, unless List Owner directly obtains from the applicable e-mail addressee(s) subsequent Affirmative Consent, as defined in the CAN-SPAM Act of 2003, as amended from time to time, or any other applicable law. List Owner agrees that it will not use Suppression List(s) for purposes of e-mail appending or the like in any manner whatsoever. No copies of any Suppression List supplied by Company to List Owner will be made or retained without the express written consent of Company. Company reserves all ownership and licensing interests in the Suppression List(s) disclosed to List Owner under the terms of this Agreement. As such, this Agreement shall not be deemed to grant or convey to List Owner any license in or other right to the Suppression List(s). Any breach of this Section shall be a material breach of this Agreement.
- TERM AND TERMINATION.
5.1. This Agreement is effective as of the date of all parties signing the List Management Order and shall remain in effect for a term of ONE (1) year (“Initial Term”), unless otherwise specified in the relevant List Management Order or unless terminated as provided for in this Agreement. Thereafter, the Agreement shall automatically renew for consecutive thirty (30) day periods unless otherwise terminated as provided herein in this Agreement.
5.2 After the initial 12 month period either party may terminate this agreement for any reason by providing Notice to the other party not less than FOURTEEN (14) days prior to the end of the initial term or any renewal term.
5.3 In the event of a breach of this agreement, that is not a material breach; either party may provide the other party with FIVE (5) business days to cure said breach; provided that written Notice is given specifying the breach.
5.4. Notwithstanding anything contained herein to the contrary, Company may suspend or terminate this agreement without notice and without a right to cure if Company has a good faith basis that said suspension or termination is necessary (i) to prevent a violation of Federal or state law, (ii) to prevent damage to Company’s reputation, or (iii) in the event of a material or anticipatory breach. Furthermore Company may terminate this Agreement immediately upon List Owners’ breach of section 7 without notice.
5.5. Post Termination Actions.
5.5.1. Upon termination of this Agreement, whether for breach or otherwise, the following shall occur:
5.5.2. List Owner shall cease providing Database to Company;
5.5.3. Company shall cease all Services and sending of emails to the Database within a reasonable period of notification; and
5.5.4. Company shall pay List Owner all sums due and owing, if any, within thirty (30) days of the effective date of termination unless List Owner is in breach of Section 7.1.
6.1. Company and List Owner agree to divide all net revenue received by Company on a 50/50 split. Company shall provide List Owner with a report on or before the 18th of each month setting forth revenue earned in conjunction with the Database (“Revenue Report”). Company shall pay List Owner 30 days after such report for Cash Collections received by Company as set forth in such report. “Cash Collections” shall be defined as the cash actually received by Company from Company’s advertiser or other third party for use of the Data. In the event Company, in its sole discretion, elects to pay List Owner in advance of Company receipt of Cash Collections, Company shall retain a fixed sum of 5% of the gross revenue due to List Owner until company receives the Cash Collection and only then shall distribute remaining proceeds to the client.
- RESTRICTIVE COVENANTS.
7.1.1. The terms of this Agreement and any information (written, verbal or otherwise) provided by the Parties hereunder or in connection herewith shall be deemed to be confidential. Without limiting the generality of the foregoing, confidential information shall include: the Database, suppression and unsubscribe Databases (except to the extent necessary to manage suppression and unsubscribe requests), and the Parties’ business policies, practices, plans and methods. Neither party shall at any time disclose any of the terms of this Agreement, nor any information shared pursuant hereto, to any third party except to the professional advisors or as authorized herein in this Agreement of either party or as may be required by applicable law.
7.1.2. The foregoing confidentiality provisions shall not apply where the receiving party can demonstrate that the information: (i) was previously known to the receiving party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the receiving party; (iii) was rightfully received from a third party who was not bound under any confidentiality provisions; or (iv) was disclosed pursuant to judicial order, requirement or request of a governmental agency or by operation of law; or (v) was disclosed to a third party as authorized herein as provided and allowed in this Agreement. The Parties hereby acknowledge that either party may disclose this Agreement to the extent necessary to comply with filing requirements, if any, of the Securities and Exchange Commission.
7.2. Non-Circumvent. During the term of this Agreement and for a six (6) month period thereafter, List Owner agrees that it will not engage, contract with, license, and/or permit any person, firm, or entity to work with, List Owner in any performance-based advertising relationship with any of Company’s web site partners, partner media sites, or affiliates, as of six (6) months prior to the conclusion or termination of this Agreement, without prior written approval by authorized party at Company. In the event of a breach of this provision List Owner shall pay Company the sum equal to the profits that Company made during the preceding six (6) months before (i) the date of the breach or (ii) the date of termination, whichever is greater.
7.3. Non Solicitation. During the term of this Agreement and for a period of two (2) years after termination of this Agreement, List Owner shall not solicit Company employees, the identities of which may be disclosed to List Owner during the term of the Agreement. In addition to Company’s rights and remedies under this Agreement or at law, List Owner agrees that monetary damages for a breach of or a threatened breach of this Section will not be adequate and that Company shall be entitled to injunctive relief (including temporary and preliminary relief). In addition to any other remedies available to Company, if List Owner shall employ a Company employee in violation of this Agreement then Company shall be entitled to liquidated damages of two times the employee’s total current salary for a period of one year.
- REPRESENTATIONS AND WARRANTIES.
8.1. List Owner’s Representations and Warranties. List Owner represents and warrants the following:
8.1.1. It has full power and authority to enter into this Agreement and the signatory hereto is empowered on behalf of List Owner to bind List Owner.
8.1.2. The execution, delivery and performance by List Owner of this Agreement will not violate any applicable law, statue, or governmental regulation.
8.1.3. the Database was/will be obtained, collected and compiled without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act or practice.
8.1.4. The Data was obtained, collected and compiled using methods that fully comply with all applicable laws, rules and/or regulations including, without limitation, the CAN-SPAM Act of 2003 and the Federal Trade Commission Act.
8.1.5. List Owner will not sell, rent, lease, license, exchange and/or otherwise transfer any e-mail address contained in any Suppression List(s). List Owner will not sell, rent, lease, license, exchange and/or otherwise transfer any e-mail address of an individual or entity that has unsubscribed from receiving future e-mail solicitations from List Owner and/or Company.
8.1.8. In the event that Database will be used by Company in any mobile or SMS campaigns as specified in the LMO, List Owner warrants that each individual consumer that is a part of the Database has consented to the receipt of SMS advertising and that List Owner has been granted said right by consumer.
8.1.9. List Owner has and will continue to maintain an internal suppression list comprised of individuals who have advised List Owner that they do not wish to receive e-mail solicitations and that such list will be updated no later than five (5) days following receipt of an unsubscribe request. All data provided to Company shall be first scrubbed against List Owner’s internal suppression lists. List Owner shall provide to Company such unsubscribe list to suppress future outgoing e-mails to persons appearing on such lists.
8.2. Company’s Representations and Warranties. Company represents and warrants to List Owner that:
8.2.1. It has full power and authority to enter into this Agreement.
8.2.2. The execution, delivery and performance by Company of this Agreement will not violate any applicable law, statute or governmental regulation.
8.2.3. Except as may be provided in this Agreement or required by law or necessary to provide compliance with laws, Company will not sell, rent, lease, license, or otherwise transfer the Database or any email address contained in any Suppression Database(s) or of any individual or entity that has unsubscribed from receiving future email solicitations from Company.
- NO OTHER REPRESENTATIONS AND WARRANTIES.
9.1. EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTY WHATSOEVER AS TO THE TECHNOLOGY, OPT-IN-DATA, OR THE EMAIL ADVERTISEMENTS, EITHER EXPRESS OR IMPLIED. THE OPT-IN DATA AND ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WHICH COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY DEALING OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY REGARDING CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, INFRINGEMENT OR PERFORMANCE.
10.1. List Owner’s Indemnity Obligations. List Owner agrees to indemnify and hold Company harmless from and against any and all claims, liabilities, costs, losses, damages, and expenses, including reasonable attorneys’ fees, arising from or related to (i) a breach of List Owner’s obligations under this Agreement, including the representations and warranties contained herein; (ii) any claim that any portion of the Database violates any law, statute or regulation, including but not limited to CAN-SPAM violations; and (iii) any costs and/or fees charged to Company by its Internet Service Provider for costs related to responding to and/or managing allegations of “spam” or any other complaints related to the legal rights of use, permission or integrity of the Database which shall be borne exclusively by List Owner. Notwithstanding the foregoing, Company shall be given full discretion and control to respond to any and all such allegations, subject to List Owner compensating Company for all related expenses including, but not limited to, reasonable attorneys’ fees.
10.2. Company’s Indemnity Obligations. Subject to the terms hereof, Company agrees to indemnify and hold List Owner harmless from and against any and all claims, liabilities, costs, losses, and expenses, including reasonable and actually incurred attorneys’ fees, arising from or related to (i) a breach of Company’s obligations under this Agreement, including the representations and warranties contained herein, (ii) any claim that the Company’s technology infringes upon any rights of a third party.
10.3. Indemnity Procedures. If any action is brought against either party (the “Indemnified Party”) for any action for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.
- LIMITATION OF LIABILITY.
11.1. IN THE EVENT OF A BREACH OF ANY OF THE TERMS OF THIS AGREEMENT BY COMPANY, THE SOLE AND EXCLUSIVE REMEDY OF LIST OWNER AND ALL AGENTS SHALL BE RECOVERY OF DAMAGES NOT TO EXCEED THE AMOUNT TRANSACTED BY THE PARTIES IN YEAR 1 UNDER THIS AGREEMENT OR THE AMOUNT OF ANY INSURANCE PAY OUT, WHICHEVER IS LESS. COMPANY SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY OR OTHERWISE, AND WHETHER OR NOT LIST OWNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICES AND PRODUCTS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT RESTRICTED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12.1. Governing Law and Jurisdiction: This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties agree that exclusive jurisdiction for any disputes arising between the parties to this Agreement shall be brought in the state courts within the State of Florida and both parties waive any defense to personal jurisdiction in those courts. The parties expressly agree that if arbitration as is required herein below fails for any reason whatsoever, jurisdiction and venue shall lie solely and exclusively in the state courts of the State of Florida located in Broward County, Florida.
12.2. Attorneys’ Fees and Costs: The parties shall be entitled to recover, in addition to costs and disbursements allowed by law, reasonable attorney’s fees and costs of in-house counsel, litigation costs, and expenses in connection with enforcement of this agreement, including pre-litigation attorney fees and costs and such fees shall be awarded to the prevailing party. Invalidation of any one of the covenants or terms of this Agreement, by judgment of a court, shall not affect any of the other provisions of this Agreement which shall remain in full force and effect.
12.3. Arbitration in Florida: Any and all disputes or claims arising out of and/or related to this Agreement, its performance, breach, or interpretation thereof (including issues as to its validity or enforceability), shall be exclusively, except as provided herein below, resolved by binding arbitration utilizing the Commercial Arbitration Rules promulgated by the American Arbitration Association (AAA). The Arbitrator shall require an Answer within 20 days of the receipt of the Demand for Arbitration. The arbitrator(s) shall use all reasonable efforts to minimize discovery and to complete the arbitration proceedings as expeditiously as possible. The Arbitrator(s) shall render a written decision within thirty (30) calendar days of the hearing. As to the issue of Attorney’s fees, the arbitrator(s) shall only determine the entitlement to attorney’s fees and shall award attorneys’ fees, the amount of which shall be determined in accordance with Florida Law. Additionally the arbitrator shall award to the prevailing party all costs associated with the Arbitration incurred by the prevailing party, including but not limited to, filing fee, case management fee, administrative fees, copying, and arbitrators fee, and all other costs incurred and associated with the arbitration, but will not award special, punitive, incidental, consequential, treble or other multiple or exemplary damages, and the parties hereby agree to waive and not seek such damages. The arbitration shall be held in Broward County, Florida; both parties hereby give their irrevocable consent to processes of the AAA in Florida. All awards may be filed with one or more courts having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection. In the event that one of the Parties fails to Arbitrate or fails to pay any of its share of fees and or costs for Arbitration, the AAA and the Arbitrator SHALL issue a Default Award against the Party that has failed to Arbitrate and or pay any of its share of fees and or costs, and said Default Award may be filed and executed upon.
13.1. Neither party nor its agents may issue a press release relating to this Agreement without the prior written approval of the other party.
14.1. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following addresses for Company:
MOJO MEDIA, LLC.
Attn: Michael Moranz
7900 Glades Rd Suite 220, Boca Raton, FL 33434
If to List Owner, to the executive and address set forth in the LMO.
- FTC AND COMPLIANCE
15.1. Company is committed to helping the Online Media industry self-regulate and abide by all laws and regulations. The Parties agree that they will keep themselves informed as to all rules and regulations promulgated by the Federal Trade Commission (FTC) as well as the FTC Act (15 U.S.C. 45). As a courtesy Company has posted on their websites a Compliance Center wherein List Owner can find important information regarding the FTC and their advertising rules, guidelines, and regulations. List Owner agrees warrants and represents, that it will from time to time visit and review the information posted on the Compliance Center. List Owner agrees and understands that the Compliance Center may not be complete or provide accurate information. List Owner shall use the Compliance Center solely as an informative tool and shall not rely on the information contained therein. For further and more up to date information please visit the Federal Trade Commission’s Web Site at: http://www.ftc.gov/
15.2. List Owner and List Owner’s sub affiliates, officers, directors, employees, consultants, agents and representatives, and the conduct of List Owner’s business, List Owner’s performance under any Engagements with any Advertiser, and List Owner’s use of any Company Network and/or Company Offerings shall comply at all times with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees.
- RULES OF CONSTRUCTION.
16.1. Construction: The preparation of this Agreement has been a joint effort of the parties, and each of the parties has participated fully in the negotiation and preparation hereof. Therefore, any rule of judicial construction that an agreement is to be construed more strictly against one of the parties than the other shall not apply and has no effect.
16.2. Headings. The captions and headings used in the Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement.
16.3. Waiver. The failure of either party to insist upon or enforce the strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
16.4. Force Majeure: Neither party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by, or due to fire, flood, water, the elements, acts of God, war, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the effected party’s reasonable control; provided that the party so delayed or prevented from performing shall provide prompt notice of such event to the other party and shall exercise good faith efforts to remedy any such cause of delay or cause of preventing performance.
16.5. Additional List Management Orders: Company and List Owner may enter into additional List Management Orders, which shall automatically be subject to the Standard Terms and Conditions hereof.
16.6. Relationship of the Parties. The Parties to the Agreement are independent contractors. Neither party is an agent, representative, partner or employee of the other party. Neither party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party. The Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either party.
16.7. Survival. Any obligations which expressly are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
16.8. Construction; Severability. Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Further, all provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement: (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
16.9. Remedies. Except as otherwise specified, the rights and remedies granted to a party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity.
16.10. Integration: This Agreement does not constitute an offer by either party and it shall not be effective until the LMO is signed or agreed to by both parties as provided for herein. Upon execution of the LMO by both parties, this Agreement and the LMO shall constitute the entire agreement between the parties with respect to the subject matter hereof and shall be deemed to merge all prior and contemporaneous agreements, communications and understandings (both written and oral). The terms and conditions of this Agreement will prevail unless expressly modified and executed in writing in any List Management Order.
16.11. Amendment. No change, amendment, or modification of any provision of the Agreement will be valid unless set forth in a written instrument and signed by the Parties except that Company from time to time may revise these Standard Terms and Conditions provided that List Owner is given written notice of all proposed changes and seven (7) days in which to object to the changes. List Owner must timely object to the proposed changes and give written notice of said objection via certified mail. In the event that List Owner timely objects to the proposed changes then the original Terms and Conditions shall control and the proposed changes shall have no effect. If List Owner does not object to the changes within seven (7) days then the new changes shall take effect and shall control. In the event that List Owner timely objects to the proposed changes then the Parties shall mutually resolve such interpretation of the modification in good faith.
16.12. Assignment. Neither party to the Agreement shall sell, transfer, or assign the Agreement or the rights or obligations hereunder, other than to a parent or subsidiary, without the prior written consent of the other party. Notwithstanding the foregoing, without securing such prior consent, either party shall have the right to assign or transfer the Agreement and its obligations hereunder to any successor-in-interest of such party by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of substantially all of the business and assets of the assigning party. This Agreement will only be fully binding upon and inure to the benefit of permitted assigns.
16.13. Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document.
16.14. Agent for Advertiser or Third Party. List Owner shall disclose to Company if it is acting as an agent for a third party, and List Owner agrees to provide Company written proof of any agency or third party relationship, upon Company’s Request. List Owner further agrees and warrants that if it is acting as an agent or agency that it is authorized to bind, and will bind, the third party to this Agreement and the Standard Terms and Conditions hereto, and that the third party will be jointly and severally liable with List Owner for all invoices and payments due and owing to Company.
16.15. Corporate Authority. The Parties or the Parties authorized representative for execution of this Agreement or any amendment hereto shall have the requisite authority to bind the Party to this Agreement and warrant to the other party that they have the requisite authority to do so.