Terms and Conditions
This Agreement, by and between Publishers Clearing House LLC, a New York limited liability company (collectively, together with its wholly-owned subsidiaries, "PCH"), and the media company named on the signature block to this Agreement ("Media Company"), shall govern the purchase of advertising and related services by PCH from Media Company.
1. Insertion Orders; Ad Placement and Positioning; Acquisition Survey.
- Insertion Orders. From time to time during the term of this Agreement, the parties may (but are not obligated to) negotiate and execute insertion orders (each an "Insertion Order" or "IO") under which Media Company will agree to display advertisements ("Advertisements" or "Ads") on its Internet website(s), or otherwise deliver Advertisements to computer users, for and on behalf of PCH. Each Insertion Order shall constitute a separate contract between the parties, which contract shall be deemed to incorporate and include the terms and conditions set forth in this Agreement. For the purposes of each such contract, the term "this Agreement" shall refer both to the terms and conditions set forth herein and the additional terms and conditions set forth in such Insertion Order.
- Ad Materials. Except as may otherwise be provided by the relevant Insertion Order, PCH shall provide Media Company with the content ("Ad Materials") of and for all Advertisements to be delivered or published by Media Company hereunder. Media Company will not alter, modify or otherwise change Ad Materials in any way without the express prior written consent of PCH.
- Ad Placements. Commencing on the start date set forth in the Insertion Order, Media Company will post or otherwise publish, as described in the applicable Insertion Order, and thereafter maintain the required Ad placements, all as set forth in the applicable Insertion Order.
- Ad Positioning. Media Company must comply with any Ad positioning restrictions in the IO. Media Company will not, absent express authority in the IO, place Advertisements on websites that are primarily dedicated to users under the age of eighteen (18).
- Additional Display Criteria. Media Company shall commence trafficking any campaign not more than three (3) days after receipt of all Ad Materials and URL links from PCH. Media Company shall use its best efforts to maintain its sites, to meet all display and usage requirements and to achieve levels of Impressions and obtain the number of Billable Actions (if any) set forth in the Insertion Order. Except as otherwise provided in the Insertion Order, Media Company shall use commercially reasonable efforts to distribute Impressions evenly across the campaign term as specified in the Insertion Order.
- Marketing Practices Survey. Media Company shall upon request complete a questionnaire or survey form provided by PCH concerning Media Company's structure, marketing methodologies and practices. All information provided shall, to the best of Media Company's knowledge and belief, be accurate, complete and present a materially correct picture of Media Company and its operations. Media Company shall update and correct as necessary any information previously provided to PCH that is not or is no longer accurate or complete or fails to present such a picture.
2. Pricing; Media Company Responsibilities; Certain Remedies.
- Bounties, Billable Actions. PCH will pay Media Company a bounty at the rate specified in the Insertion Order for each billable action (each, a "Billable Action") specified below generated by Media Company pursuant to the IO between the start and end dates of any campaign (subject to any shorter period or payment caps specified in the Insertion Order):
- Cost Per Acquisition/Lead or "CPA" Pricing: for each "Completed Action," which means a user registration that meets all of the following criteria: (A) it is conducted at or from the URL provided to Media Company by PCH for purposes of separately tracking the registrations delivered pursuant to the applicable Insertion Order, (B it is accomplished by a natural person not already in PCH's registration database, who fills out all data requested with valid information and does not opt-out of receiving emails from PCH; and (C) it otherwise meets all registration requirements posted at such URL or set forth in the IO. PCH retains the right to "bump out" prospective registrants who do not meet all registration criteria in place from time to time (for example, PCH's registration process requires users to be legal residents of the U.S.) even though such "bump out" prevents the registration from completing;
- Cost Per Click or "CPC" Pricing: for each "Click-Through," which means that the user has successfully clicked through to the page designated by PCH for purposes of potentially engaging in further action at the destination site.
- Cost per Thousand Impression or "CPM" Pricing: for every one thousand "Impressions," which means each time a viewer has displayed the Advertisement (including a PCH-approved combination name and/or insignia/banner/button/graphic together with a hyperlink to a web page designated by PCH) in a web browser window, email message window or other medium, as specified in the Insertion Order.
- Exclusions. Except as otherwise provided in the relevant Insertion Order, no bounty shall be paid or payable in connection with (i) any Billable Action generated as the result of any incentive, reward or similar program offered by or through Media Company in exchange for such Billable Action ("Incentivized Clicks"); (ii) any Billable Action reasonably believed by PCH to have been taken by persons under the age of eighteen (18); (iii) any Billable Action by any person reasonably believed by PCH to be located outside the United States or who is otherwise not an eligible participant in the PCH sweepstakes; (iv) any Billable Actions reasonably believed by PCH to have been produced by any automated, computerized or machine-driven process or by persons acting on behalf of (or motivated primarily by a desire to benefit) Media Company ("Artificial Clicks").
- Media Company Practices. Media Company (i) shall not permit any of its systems, employees, agents or contractors to generate Artificial Clicks or, unless expressly permitted in the Insertion Order, Incentivized Clicks, (ii) represents and warrants that it has safeguards in place to prevent its systems, employees, agents and contractors from generating Artificial Clicks, and (iii) shall immediately notify PCH if it has reason to believe that Artificial Clicks might be occurring. In addition, Media Company shall not publish or display any Advertisement on any website which appears on any list of prohibited sites provided to Media Company from time to time by PCH. Media Company's violation of this paragraph shall give PCH the right to terminate this Agreement, effective immediately on notice to Media Company, and to pursue all other remedies available to it at law or in equity.
- Monitoring. Media Company shall monitor all Ad placements and traffic to ensure, to the highest industry standards, that (i) Billable Actions are being generated by real persons (and not through bots, scripts or other means of generating Artificial Clicks), (ii) users are not redirected against their wish or without their knowledge (e.g., by a page that may not be visible to an average user), and (iii) Billable Actions are not being generated by Harmful Code. Media Company will, upon request by PCH, place a parameter on PCH's click-through URL that will pass through sub-id data to PCH's analytics, to enable Media Company to customize traffic to hit PCH's desired metrics through optimization. In addition to optimizing off of sub-id data, Media Company will also, upon request, block specific URL's from sending traffic to PCH's Ads and campaigns. Media Company will, upon request, assist PCH in any investigation undertaken by PCH inquiring into the legitimacy of any Billable Actions provided by or through Media Company, including (in the case of upstream referring sites) transparency into the referring site, prior complaints received by Media Company concerning the referring site and any evidence in the possession or under the control of Media Company that would tend to support the proposition that the referring site was providing Billable Actions that are or were in violation of this Section 2 or otherwise not legitimate.
- Remedies. PCH alone shall have the right to determine, in the reasonable exercise of its discretion, whether a violation of this Section 2 has occurred. If Media Company disputes any such determination, it may submit such evidence as it believes to be relevant and in support of its position, but the final determination will still be made by PCH. The parties acknowledge that hard evidence may not always be available, or may be conflicting, and that such determinations will often be matters of inference and judgment, but such determinations will nevertheless be binding upon Media Company. No bounties will be paid in respect of Billable Actions that PCH so determines were generated as a result of Incentivized or Artificial Clicks or otherwise in violation of this Section 2. If PCH so determines that a violation of this Section 2 has occurred, PCH shall have the right to pursue any or all of the following remedies: (i) to terminate this Agreement effective upon notice to Media Company, (ii) to charge back to Media Company any bounties already paid on what PCH has so determined to be Artificial or Incentivized Clicks, (iii) to report the violation or suspected violation to governmental or industry self-regulatory bodies, and (iv) to pursue all other remedies available to it at law or in equity.
3. Tracking; Payment; Taxes.
- Tracking. The number of Billable Actions for which payment is due under an Insertion Order shall be determined as specified in the Insertion Order or (if not there specified) as recorded by PCH's servers. If the parties agree to track the campaign using Media Company's servers (or those of a third party selected by Media Company), but the number of Billable Actions recorded by PCH's server is lower than that reported by Media Company, and the amount in dispute is greater than 10% of the total, then (i) PCH will notify Media Company of the dispute, (ii) the parties will work together in good faith to reconcile the two sets of server data, and (iii) the parties will exercise commercially reasonable efforts to resolve the dispute within fifteen (15) days. PCH may withhold payment of the disputed amount(s) of the invoice, but must remit to Media Company the undisputed amount(s) in a timely manner. If the discrepancy cannot be resolved within such period of time, despite such good faith reconciliation efforts, PCH's liability shall be no greater than 110% of the number recorded by PCH's servers.
- Billing Procedure; Payment.
- Amounts due (and not disputed in good faith) will be paid by PCH on a monthly basis (or such other period as may be specified in the relevant IO) in arrears.
- Media Company shall invoice PCH for the amounts due based upon the relevant reporting data. Where the amount due is based on PCH reporting data, PCH will provide (or make accessible) the reporting data to Media Company promptly after the end of the applicable reporting period.
- PCH may generate a purchase order for each IO, and each invoice delivered by Media Company under that IO must bear the applicable purchase order number.
- Payment of any undisputed invoiced amounts shall be due no less than thirty (30) days after receipt of the invoice by PCH's accounts payable department or, in the case of disputed amounts, after resolution of the dispute.
- Media Company acknowledges that allocation of PCH's limited advertising budget between media suppliers and over time relies upon Media Company to accurately estimate the periodic fees/bounties payable by PCH under each Insertion Order. Accordingly, in the event that the Insertion Order lists a periodic or total maximum amount, projected spend or similar terms (regardless of whether expressed as an estimate), PCH shall not be liable for any fees/bounties for such period in excess of such amount and over-delivery of any Billable Action in one period shall not be carried over to the following period.
- Late payment shall not be subject to late fees, penalties and/or interest unless the relevant IO expressly so provides. In no event shall such late fees, penalties or interest apply to any invoice which does not include PCH's purchase order number (if such number was timely provided to Media Company).
- Invoices must be received by PCH within one hundred eighty (180) days of delivery of the relevant Billable Actions. Failure by Media Company to provide PCH with an invoice within such period of time shall be considered a waiver of right to payment for delivery of goods or services for which no invoice was timely sent.
- Taxes. PCH shall be responsible for the payment of all taxes and duties, if any, assessed by any governmental or other taxing authority in connection with the transactions contemplated hereby or payments made hereunder, including sales, excise or other transaction-based taxes but excluding in all events taxes measured by the net income of Media Company.
4. Link Formats. PCH may provide Media Company with hyperlinks for inclusion in Advertisements, to enable PCH to track Billable Actions. PCH will have no liability for payments in respect of Billable Actions for any Ad as to which Media Company fails properly to implement such links.
- Confidential Information. . Each party shall keep confidential and shall not disclose confidential and proprietary information of the other party, and shall not use such information except as required to perform its obligations under this Agreement. Each party will observe in respect of the confidential information of the other the same standards and practices as it observes for its own confidential information of similar character and importance but in any event not less than commercially reasonable standards and practices. Each party acknowledges that a breach of this Section 5 would cause the other party irreparable harm and that the harmed party shall be entitled to seek appropriate equitable relief without posting a bond in the event such breach is threatened or occurs. For the purposes of this Section 5, the following shall not constitute "confidential information": (i) information in the public domain, (ii) information already known to the receiving party, (iii) information acquired by the receiving party from another source without violation of any confidentiality obligation, and (iv) information developed by a party independently of information received from the disclosing party. If confidential information is required to be disclosed by applicable law or by order of any court or governmental authority, the party subject to such obligation shall (1) promptly notify the disclosing party; (2) cooperate (at the disclosing party's expense) in any effort by the disclosing party to oppose disclosure or otherwise obtain a protective order; and (3) disclose only so much of such confidential information as, on advice of counsel, it is legally obligated to disclose. Upon termination of this Agreement or any relevant IO, or sooner on demand by the disclosing party, the receiving party will promptly return any confidential information of the disclosing party or destroy it, if so requested by the disclosing party, un-copied and undistributed. Destruction of any confidential information shall be certified in writing by an officer of the receiving party with five (5) days of such request.
- b. Campaign Information and Customer Data. In addition to and without limiting the foregoing, Media Company shall keep confidential and not use or disclose any data pertaining to any campaign (including all information regarding the specific viewing of Advertisements, the click-through rates of such Advertisements, the number of Billable Actions generated under this Agreement, and the demographics of users that respond to the Advertisements) to any third party, nor permit such third party to use such data to target any offer or communication to end-users or otherwise to solicit end-users. All such data shall be the property of PCH; provided, however, Media Company may use aggregate demographic information once stripped of any personally identifiable user information or PCH-specific information. Unless expressly agreed to in writing by PCH, Media Company shall not disclose to any third party (in marketing materials or otherwise) that PCH is among its advertisers or the pricing or any other terms and conditions of this Agreement.
6. License to Use Ad Materials. Subject to the terms and conditions of this Agreement, PCH hereby grants to Media Company a limited, non-exclusive, non-transferable license to use Ad Materials provided to Media Company by PCH, including any trademarks, service marks and logos set forth therein (collectively the "Marks"), solely to display Advertisements and links as specified in the Insertion Order and otherwise in accordance with this Agreement. Media Company shall use only the most current Ad Materials and Marks provided by PCH from time to time. Media Company will not take any action inconsistent with PCH's ownership of the Marks and acknowledges that any rights accruing from use or display of such Marks shall inure solely to the benefit of PCH. Media Company will not alter, modify, rearrange, amend or otherwise change any Ad Materials (including subject lines) in any way without the express prior written approval of PCH. Media Company may not sublicense, resell, assign or transfer any of its rights or obligations hereunder without the prior written approval of PCH. Any attempt to resell, assign or transfer such rights or obligations absent such approval shall be void and of no effect and may, at PCH's discretion, result in immediate termination of this Agreement without any liability to Media Company. All rights not expressly granted hereunder are reserved to PCH.
7. Email Compliance. Media Company shall ensure that transmission and delivery of Ad Materials by Media Company or its third-party suppliers, including permitted Downstream Affiliates (if any), pursuant to this Agreement complies with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the "CAN-SPAM"), any all other local, state and federal laws regarding the sending of commercial email. In particular, but without limiting the foregoing, Media Company shall not transmit any email under this Agreement or otherwise on behalf of PCH unless all of the following conditions are met:
- All such e-mail transmissions shall contain such content as is sufficient to qualify the email transmission as a multi-sender email for the purposes of compliance with FTC regulations and guides concerning CAN-SPAM, with Media Company as the sender, and shall clearly indicate that the e-mail is being sent by Media Company. The "from line" shall in all events identify Media Company as the sender of any such e-mail transmission.
- Media Company shall not use the name "Publishers Clearing House" or "PCHonline" or any other PCH brand or any abbreviations of such names or any other trademark, trade name, service mark, logo or other identifying information of PCH or its brands, in the originating or return e-mail address line, header, from or subject line of any e-mail transmission.
- Media Company shall obtain the prior written approval of PCH for the "subject line" for each email sent hereunder.
- Every email promoting a PCH product or service shall contain a functioning return electronic mail address or other Internet-based communication mechanism clearly displayed that a recipient may use to request not to receive future email messages from Media Company.
- Every e-mail sent by Media Company shall include a valid physical postal address of Media Company as the entity responsible for sending the e-mail communication.
- All email transmitted hereunder shall contain a notice, which may be specified by PCH, within the email message indicating that the email message contains a commercial message.
- Media Company will not send email unsolicited to a recipient who has not consented to receive commercial email from Media Company or who does not otherwise have a prior business or personal relationship with Media Company.
- Media Company will send PCH offers only to recipients who have click or response activity within the last ninety (90) days.
- Media Company shall process any and all opt-out requests within ten (10) business days of the request and shall maintain electronic or tangible records evidencing the addition of such email addresses to its suppression list within such time periods. Media Company shall make such records available to PCH for verification within three (3) days of request.
- Media Company shall screen its email lists against its own suppression files and, if PCH shall so request, against PCH's suppression files as well. Media Company shall apply PCH's suppression files to all email distributions within twenty-four (24) hours of receipt from PCH. PCH may send suppression file updates as often as it wishes, but not more frequently than on a daily basis. Neither party shall use the other party's suppression files or the names on those files for any purpose other than to suppress names from the Media Company acquisition email program and shall not disclose, transfer or sell the other party's suppression files or the lists of names on those files to any third party. Upon request, each party shall provide such further assurances, and enter into such additional confidentiality and non-disclosure agreements, as the other party may in its discretion request to assure the integrity and safeguard the confidentiality of such information and to assure that emails are disseminated in accordance with applicable law and best practices within the industry.
- Upon notice from PCH to Media Company requesting that Media Company terminate e-mail solicitations of one or more PCH products or services, Media Company shall immediately stop transmitting e-mail solicitations promoting such PCH products or services.
- Media Company will send email only from approved domains and IP addresses. Media Company will not knowingly send solicitations from any domain or IP address that is known to have an SBL listing or is associated with solicitations that are not compliant with any State or Federal regulations. Media Company shall monitor all Media Company domains and IP addresses used for transmission of email on behalf of PCH. Media Company will notify PCH in the event that Media Company receives a complaint related to a PCH product or service or solicitation. Media Company will immediately cease the use of any domain or IP addresses for PCH efforts upon request from PCH.
- Media Company shall not use a broker or other third party to deliver e-mails hereunder unless the relevant IO authorizes such deployment and, in each case, (i) such broker or third party agrees to act in compliance with all terms of this Agreement applicable to Media Company if Media Company were performing such service itself, (ii) Media Company agrees to fully and completely indemnify PCH for all damages arising from the broker's or other third party's breach of any of such obligations, and (iii) Media Company has the contractual right to terminate distribution or procurement by any such third party on twenty-four (24) hours notice.
- In particular, and without limiting the foregoing, Media Company shall not use, authorize or permit any third-party distributers, packagers, sub-publishers, affiliates or advertising syndication partners ("Downstream Affiliates") to publish, distribute or disseminate email containing Advertisements without the express written prior consent of PCH. All Downstream Affiliates must agree to be bound by the terms of this Agreement, as fully as if they were a party hereto, including without limitation the restrictions on approved domains and IP addresses. PCH shall be a third party beneficiary of any such agreement and be entitled to enforce the provisions thereof against any Downstream Affiliate. Media Company will not allow any Downstream Affiliate to alter, modify, rearrange, amend or otherwise change Ad Materials provided by PCH.
- Media Company will be responsible for monitoring any Downstream Affiliates sending emails containing Ad Materials to assure that they and all such emails are in compliance with this Agreement and that all activity reported by such Downstream Affiliates is accurate.
- In particular, but without limiting the generality of the foregoing, Media Company will not itself nor will it permit any Downstream Affiliate to report activity in response to an email as activity associated with banner advertising or clicks.
- Upon request, Media Company shall provide PCH promptly, and in any event within three (3) business days, with (i) a point of contact at Media Company for handling customer complaints received by PCH, (ii) information regarding consumer responses to any e-mail transmission hereunder and any and (iii) all records verifying that recipients consented to receive the e-mail transmission in question and had not properly unsubscribed from Media Company's email list.
- Violation of this Section 7 in any respect is a material breach of this Agreement and will entitle PCH to terminate this Agreement and all current IO's without liability to Media Company and to pursue any and all other remedies available at law or in equity, notwithstanding any provision of any IO or other writing that purports to limit PCH's rights or Media Company's liability in any way.
- PCH shall, in addition to all other remedies available to it under this Agreement or applicable law, have the right to decline to make any payments to Media Company, and no such payments shall be due, as a result of Media Company promotional efforts that cannot be verified by Media Company as having complied in all material respects with the terms and conditions hereof.
8. No Adware, Spyware or Drive-by Download Applications.
- As used in this Section 8, (i) "Spyware" means any application that covertly gathers user data and transmits it through the user's Internet connection, other than information (A) reasonably gathered in connection with services or information overtly provided by the application provider to such users, or (B) that is not associated with personally identifiable information; (ii) "Adware" means any application that (A) causes advertising to pop-up as a new window (over or under the active window) on the user's computer either randomly or based on the user's online activity (other than advertisements a website serves to users while those users are visiting or exiting its own domain) or (B) is used to distribute Spyware, in each case regardless of whether the user consented to install such application; and (iii) "Drive-by Download" means any software installation process or procedure initiated as the direct or indirect result of a page or Ad view unless the user receiving the download requested it by voluntarily clicking on a button containing the words "download now" (or words of similar meaning) immediately prior to the initiation of such process or procedure (i.e., the user's consent must be given in response to a clear download offer; agreement by the user to proceed past a security warning, alone, is not sufficient).
- Media Company acknowledges that any association of PCH's products or services with Spyware, Adware or Drive-by Download applications would harm PCH's goodwill with users, industry professionals and the general public.
- Media Company shall not, and shall ensure that its permitted Downstream Affiliates (if any) do not, display Ad Materials on or through Adware, Spyware or Drive-by Download applications.
- Media Company shall not, and shall ensure that its permitted Downstream Affiliates (if any) do not, (i) modify, bypass or obscure the disclosures contained in or linked to by Ad Materials; (ii) permit any other entity to modify, bypass or obscure such disclosures; or (iii) otherwise modify the Ad Materials or any ad tag supplied by PCH without PCH's prior express written consent.
- Media Company represents and warrants that it will exclude from its advertising network any Downstream Affiliate that it has a reasonable basis to believe has distributed any Spyware, Adware or Drive-by-Download application, or modified Ad Materials in any manner.
- In case of breach of this Section 8 or the representations made herein, PCH may immediately terminate this Agreement and no bounty shall be payable by PCH in connection with any Billable Action generated through or as a result of any Adware, Spyware or Drive-by Download applications or any Advertisement incorporating or displaying modifications of any kind to the Ad Materials.
9. Representations and Warranties.
- Both parties. Each party represents and warrants to the other (i) that it has the right, power, and authority to execute, deliver and perform its obligations under this Agreement; and (ii) that its obligations will be performed in compliance with all applicable laws, rules and regulations of the United States and any state and the ethical standards of the Direct Marketing Association.
- PCH. Without limiting the generality of the foregoing Section 9(a), PCH further represents and warrants to Media Company that (i) any PCH Marks and Ad Materials supplied by PCH to Media Company do not and will not infringe upon the intellectual property right of any third party; (ii) the Ad Materials shall comply with all applicable laws, including without limitation, Section 5 of the FTC Act or other relevant regulations or legislation; (iii) Ad Materials will not contain any virus, worm, trap door, back door, or any other contaminant, or disabling devices including, but not limited to, timer, clock, counter, or other limiting routines, codes, commands, or instructions that may have the effect or be used to access, alter, delete, damage, or disable the sites or Media Company network, systems, other software, information, or other property of Media Company or of the recipients of any Advertisement hereunder ("Harmful Code"); and (iv) Ad Materials will not contain, or cause the introduction to any user's system of, any Adware, Spyware or Drive-by Download applications.
- Media Company. Without limiting the generality of the foregoing Section 9(a), Media Company further represents and warrants to and agrees with PCH that (i) Advertisements will only be sent or displayed to recipients who have consented to receive third-party solicitations online and such consent either was provided directly to Media Company by the recipient or, if Media Company received assurance of such consent from a third-party list provider, such assurance is in writing; (ii) Media Company site(s) (which shall include without limitation all networked websites or other media through which Media Company may acquire the rights to display advertising) on which the Advertisements are or will be displayed, the material or content posted thereon (and/or included therein, other than Ad Materials), and the method of delivering advertising hereunder do not violate any governmental law, rule or regulation or any judicial decree or any intellectual property or other proprietary right of any third party and do not contain any content which may reasonably be considered harassing, libelous, abusive, threatening, harmful, vulgar, obscene, indecent or tortious; (iii) Media Company will exercise its best efforts to prevent the introduction through data transmission via modem or any other medium or in the performance of any service hereunder of any Harmful Code; and (iv) Media Company's website will not contain, or cause the introduction to any user's system of, any Adware, Spyware or Drive-by Download applications.
- DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY SPECIFICALLY DISCLAIMS, ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability. WITH THE EXCEPTION OF A BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 5 HEREOF, OR CLAIMS ARISING FROM OR ALLEGING THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY, OR AS REQUIRED TO INDEMNIFY A PARTY HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST OPPORTUNITIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND REGARDLESS OF THE CAUSE OF ACTION UPON WHICH ANY SUCH CLAIM IS BASED, AND REGARDLESS OF THE FAILURE OF ANY LIMITED WARRANTY AVAILABLE HEREUNDER TO ACHIEVE ITS FUNDAMENTAL PURPOSE.
- General Indemnification Obligation. Each party (the "Indemnifying Party") shall defend, indemnify and hold the other party (the "Indemnified Party") and its affiliates, and each of their respective employees, officers, directors, shareholders, contractors and agents, harmless from and against any and all liability, loss, damage, expense, claim or cause of action, including without limitation attorneys' fees and expenses, arising out of or related to the breach or alleged breach of the Indemnifying Party's representations and warranties in this Agreement and any specific indemnification obligations of that party set forth below. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such claim; shall promptly tender the control of the defense and settlement of any such claim to the Indemnifying Party; and shall cooperate (at the Indemnifying Party's expense) in the defense of any such claim as reasonably requested by the Indemnifying Party; provided that failure so to give notice, tender or cooperate will relieve the Indemnifying Party of its indemnification obligation only to the extent of any actual prejudice that would have been avoided had such failure not occurred; and provided, further, that the Indemnifying Party shall not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects the Indemnified Party's rights without the prior written consent of the Indemnified Party.
- Media Company's Specific Indemnification Obligations. In addition to the foregoing, Media Company's specific indemnification obligations shall extend to third-party claims (including claims grounded in any alleged violation of law) relating to: (i) Media Company's products or services; (ii) any alteration of any Ad Materials by Media Company or its agents or representatives or third parties acting on its behalf or under its authority or control; (iii) any material breach by Media Company of any of Media Company's email compliance obligations or failure to comply with applicable law; or (iv) any material breach by any email list provider, broker or other third party selected by Media Company, including without limitation any Downstream Affiliate, of any obligation imposed on Media Company or any such third party by this Agreement, regardless of whether or not PCH shall have consented to such relationship.
- PCH's Specific Indemnification Obligations. In addition to the foregoing, PCH's specific indemnification obligations shall extend to third-party claims (including claims grounded in any alleged violation of law) relating to: (i) PCH's promotions and promotional practices; (ii) any Ad Materials provided by PCH and not modified by Media Company or any affiliate of Media Company, including without limitation any Downstream Affiliate; and (iii) any PCH product or service.
12. Ad Material Formatting. PCH will provide all Ad Materials in a format and a transmission method reasonably agreed upon by the parties and identified in the Insertion Order.
13. Right to Reject Advertisement. Media Company has the right to reject any Ad Materials, and to cancel any PCH campaign, if Media Company has good cause to believe that such Ad Materials are likely to bring about a claim subject to indemnification hereunder. However, Media Company must promptly provide PCH with written notice of such rejection and/or cancellation, together with the specific reason for such rejection and/or cancellation, and any materials supporting such reason.
14. Term and Termination; Cancellation of Insertion Orders. This Agreement shall be effective as of the Effective Date specified below, and shall remain in effect until terminated by either party on notice to the other; provided that no such termination shall affect any then-outstanding Insertion Orders or the rights of the parties thereunder or hereunder with respect thereto. PCH may cancel any Insertion Order on no less than twenty-four (24) hours (seventy-two (72) hours in the case of an email campaign) prior notice to Media Company, unless a different cancellation period is expressly stated in the IO. In the event of cancellation, PCH shall be liable solely for Ads actually delivered through the effective date of cancellation. Upon cancellation of an Insertion Order, all licenses granted to Media Company in connection with that IO shall immediately terminate, and Media Company shall cease using and promptly return and purge its files of all Ad Materials relating to that IO and all related PCH confidential information. The liabilities of the parties arising prior to the expiration or effective date of cancellation of any IO, or based on facts in existence prior to the expiration or effective date of cancellation thereof, and the terms and conditions set forth in this Agreement with respect thereto, shall survive the expiration or cancellation of any Insertion Order.
15. Public Statements. Neither party shall issue any press release nor make any public statement regarding this Agreement (including the terms and existence thereof) or the relationship between the parties without the other party's prior written approval.
16. Miscellaneous. This Agreement (a) shall be governed by and construed in accordance with, the laws of the State of New York, without giving effect to choice of law principles; (b) may be amended only by a written agreement executed by an authorized representative of each party; and (c) constitutes, together with the relevant IO, the complete and entire expression of the agreement between the parties with respect to the subject matter thereof, and supersedes any and all other agreements, whether written or oral, between the parties with respect thereto. All waivers hereunder must be expressly made in writing. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. Any notice required or permitted to be given hereunder shall be in writing, addressed to the recipient at the address therefor set forth below and effective upon delivery to the recipient. This Agreement shall inure to the benefit of, and shall be binding upon, both parties and their respective successors and permitted assigns. Neither party may assign or delegate this Agreement or any of its rights or duties under this Agreement without the prior written consent of the other party, except as expressly set forth herein or to an individual or entity into which it has merged or which has otherwise succeeded to all or substantially all of the assets or business of the assignor, and which has assumed in writing or by operation of law, the assignor's obligations under this Agreement, and any purported assignment in violation of this provision shall be void and of no effect. Reasonable facsimiles of original writings delivered by electronic transmissions (such as by fax or as email image attachments) shall be deemed to satisfy any legal formalities requiring that instruments be made in writing. The parties shall be deemed to have the status of independent contractors, and nothing in this Agreement shall be deemed to place the parties in the relationship of employer-employee, principal-agent, partners or joint venturers or otherwise empower either party to act for or to commit the other. Any disputes or legal proceedings arising out of or related to this Agreement shall be resolved exclusively in the state and federal courts sitting in New York County, New York (in the case of proceedings initiated by Media Company), or the county and state in which are located the office of Media Company specified below (in the case of proceedings initiated by PCH), and the parties hereby irrevocably consent to the personal jurisdiction of such courts and waive any objection to venue therein in the nature of inconvenient forum. This Agreement and any Insertion Order may be executed in counterparts by the parties hereto, and delivered by facsimile transmission, and signature pages may be removed and re-attached to duplicate writings to create a master copy of this Agreement, which thereafter shall constitute one and the same instrument.