4. Payment; Tracking and Reporting.
(a) Tracking. The fixed fee rate for each Campaign shall be established by the Publishers and/or Paved. Unless otherwise approved in writing by Paved, Creative associated with a Campaign must include, in unaltered form, a unique tracking code provided by Paved to Advertiser ("Tracking Codes"). Advertiser may not modify, circumvent, impair, disable or otherwise interfere with any Tracking Codes and/or other technology and/or methodology required or made available by Paved to be used in connection with any and all Creative or Campaigns. All determinations made by Paved in connection with the Campaigns and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Paved’s services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher or other third party.
(b) Reporting. Regularly updated reporting associated with all Campaigns shall be made available to Advertiser via the Platform.
(c) Payment. Payment for each Campaign is due from Advertiser at the time of Campaign booking, unless the Advertiser is approved for invoicing by Paved. If an Advertiser’s account is eligible for invoicing, Paved will invoice Advertiser promptly after booking a Campaign. Payment will be due to Paved within thirty (30) days of the invoice date. If an Advertiser requests a new invoice, payment will be due based on the original invoice date. If payment is not made in a timely manner, Paved may, at its option, immediately terminate the Agreement. Paved will also have the right to charge Interest on past due amounts at the rate equal to the lesser of one and one half percent (1.5%) per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Paved for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Based on Paved’s review of an Advertiser account and/or credit, a credit limit may be applied to an Advertiser’s account. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Paved and/or any of its Publishers pursuant to the Campaigns including, without limitation, Chapter 57 of the Laws of 2008 amending the New York State Tax Law.
(d) Cancellation Policy. Any campaigns cancelled within thirty (30) days of the send date will still be charged the full amount stated in the applicable insertion order or booking confirmation. Campaigns that are rescheduled or moved to future dates more than two (2) times will also be treated as a cancellation and will be charged the full amount stated in the applicable insertion order or booking confirmation whether or not they run. If Advertiser wishes to reschedule any Campaign start date, Advertiser must provide notice to Publisher and Paved at least seven (7) days prior to the existing Campaign start date of the reschedule and of the new proposed Campaign start date. Failure to provide the requisite notice will be treated as a cancellation and the full amount stated in the applicable insertion order will be charged whether or not the Campaign runs.
(e) Campaign Performance and Makegoods. The performance of Campaigns shall be determined based on Paved’s tracking and reporting, which determination shall be final and binding upon the parties. If unique clicks from a Campaign are more than thirty percent (30%) below the historical performance statistics listed on a Publisher’s Profile Page for that specific placement and Campaign type, an Advertiser is entitled to request a single makegood through Paved from the applicable Publisher as a remedy for the under-performance. If unique clicks from a Campaign are fifty percent (50%) or more below the historical performance statistics listed on a Publisher’s Profile Page for that specific placement and Campaign type, Advertiser can request that Paved issue a platform credit equaling the cost of that Campaign to put toward other Campaigns.
5. Ownership of Platform. Paved owns all right, title and interest in and to the Platform including, without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. Paved grants Advertiser a limited, revocable, royalty-free, non-exclusive, non-transferable license to access and use the Platform for the Term (as defined below) only. Advertiser acknowledges that the rights granted under the Agreement do not provide Advertiser with title to, or ownership in, the Platform, but only a right to use the Platform subject to and under the terms and conditions of the Agreement. All rights not expressly granted to Advertiser hereunder are reserved by Paved.
6. No Tampering & API Restrictions. Advertiser may not, and may not knowingly permit any third party to copy, reproduce, modify, translate, prepare derivative works of, decompile, decipher, disassemble, reverse engineer, attempt to derive source code from, disable, or tamper with the Platform; or otherwise work around any technology (including Tracking Codes) or technical limitations of the Services, the Paved Platform or website, any API, any widgets, buttons, or other assets provided by Paved, or other platforms Paved utilizes; or otherwise infringe on the rights of Paved, or any third party related to the Services or the Platform. Advertiser understands and agrees that it is only permitted to use any APIs, widgets, buttons, or other assets or technology provided, as well as any data derived from same, for purposes directly related to the Services and Platform. In addition, Advertiser agrees and understands that it cannot use, evaluate or view the Platform, the API, widgets, buttons, or other assets or technology provided, for any other purpose, including for the purpose of designing or creating a product or service competitive with/to Paved’s products or services. If the Agreement is terminated by either Party for any reason, Advertiser agrees that it will immediately cease use of and delete all login credentials, API credentials, APIs, widgets, buttons, or other assets or technology provided as well as any data Advertiser has received through same.
7. Email Marketing Requirements. The email marketing requirements set forth in this paragraph (the "Requirements") state the minimum standards that Advertiser must adhere to in light of current laws, rules and regulations governing the transmission of email and best practices in the industry. In the event that any state or federal law, rule or regulation governing email communications is enacted or amended after the Effective Date of this Advertiser Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such subsequently enacted or amended law, rule or regulation shall apply to Advertiser, notwithstanding anything to the contrary set forth in these Requirements. Advertiser shall be responsible for ensuring that all Creative to be delivered in connection with a Campaign is prepared in accordance with any applicable law, rule or regulation, whether currently enacted or enacted in the future, including, but not limited to, the CAN-SPAM Act of 2003, as amended ("CAN-SPAM"), the EU General Data Protection Regulation ("GDPR"), Canada’s Anti-Spam Legislation ("CASL"), the Michigan Children's Protection Registry (https://www.protectmichild.com/senders/), the Utah Child Protection Registry (https://www.donotcontact.utah.gov/), the Children’s Online Privacy Protection Act, and the Federal Trade Commission’s report entitled, "Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers" as amended, copyright, trademark, U.S. patent, or any other law or third party right (collectively, "Applicable Law"). Advertiser is solely responsible for all consumer complaints in connection with the Creative or Campaign content.
8. Suppression Lists. In the case of a Dedicated Email Campaign, Advertiser may provide Paved and any applicable Publishers with a copy of the Advertiser-generated Suppression List in an anonymous, encrypted format only. If no such email addresses are supplied by Advertiser, Paved and its Publishers may conclude that no such addresses exist.
9. Term. The Agreement shall commence on the Effective Date and continue for a period of twelve (12) months ("Initial Term"). Thereafter, the Agreement shall automatically renew on an annual basis (the Initial Term, together with each such annual renewal, the "Term"). Either party may terminate the Agreement at any time during the Term, with or without cause, upon thirty (30) business days prior written notice to the other party. Either party may terminate the Agreement immediately upon written notice if the other party materially breaches the Agreement.
10. Representations and Warranties. Advertiser represents and warrants that:
(a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder;
(b) the acceptance of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound;
(c) when accepted, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms;
(d) it, as well as its services, and Sub-Marketers, will comply with any Applicable Law;
(e) it owns and/or has any and all rights to permit the use of the Creative by Paved and its Publishers as contemplated under the Agreement;
(f) it has a reasonable basis for any and all claims made within the Creative and any Advertiser website linked to from the Creative and possesses appropriate documentation to substantiate such claims;
(g) it shall fulfill all commitments made in the Creative;
(h) the Creative is and will be accurate, complete and appropriate;
(i) it will not disable "back" browser functionality to prohibit end users from returning to the website from which
the Creative was selected, if applicable;
(j) the Creative and any Advertiser website linked to from the Creative does not contain any viruses, trojan horses, time bombs, worms, cancelbots, trap doors, back door devices and similar devices that could potentially damage, intercept, expropriate or otherwise interfere with
Publisher’s database or any information contained therein;
how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;
(l) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S.
Office of Foreign Assets Control ("OFAC"); and
(m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National ("SDN"), as OFAC may so designate from time to time, and, without limiting the foregoing, Advertiser shall ensure that the following shall fully comply with
GDPR: (i) Advertiser’s internal security policies and procedures, encryption technology, personnel oversight and networks associated with Consumer Data; (ii) Advertiser’s record keeping practices in connection with Consumer Data obtained, stored, utilized and/or transferred to third parties by Advertiser; (iii) Advertiser’s procedures for preventing a breach of Consumer Data and responding in the event that a Consumer Data breach occurs; (iv) Advertiser’s policies and procedures related to cross-border transfers of personal information; and (v) Advertiser’s policies for honoring the right of consumers to access, modify and delete their respective Consumer Data records, including Advertiser’s policies regarding compelling third parties with which Advertiser has shared Consumer Data to honor same. Advertiser will require each party with which Advertiser shares Consumer Data to represent and warrant that each such third party will fully comply with the provisions of (m)(i) – (m)(v) contained in this paragraph.
11. Audit. Advertiser agrees that, at all times during the Term, it shall maintain accurate books and records relating to Advertiser’s compliance with Applicable Law and the terms of the Agreement (collectively, the "Audit Items"). Advertiser agrees that Paved, or any designee of Paved that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the Term, and for six (6) months thereafter, to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Advertiser at least thirty (30) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at Paved’s sole cost and expense and shall be strictly limited to those books and records that specifically relate to the Audit Items. Notwithstanding the foregoing, if Paved uncovers any material misconduct associated with Advertiser’s compliance with Applicable Law and/or the terms of the Agreement, then the audit shall be at the sole cost and expense of Advertiser.
12. Indemnification. Advertiser agrees to indemnify, defend and hold harmless Paved, its subsidiaries, agents, contractors, shareholders, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any: (a) breach of the Agreement by Advertiser; (b) actual or alleged violation of Applicable Law; and/or (c) claim related to the Creative, Advertiser website(s), Advertiser’s use of the Consumer Data and/or Advertiser Products; and/or (d) act or omission of any Sub-Marketer. Paved agrees to indemnify, defend and hold harmless Advertiser and/or, its subsidiaries, agents, contractors, officers, directors, members and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any third party claim that Paved has breached the Agreement.
13. Feedback. If Advertiser provides any ideas, feedback, suggestions, materials, information, opinions, or other input to Paved ("Feedback"), regardless of any accompanying communication, Paved has no obligation to review, consider, or implement Feedback. All Feedback is made on a non-confidential basis, unless otherwise agreed to in writing by Paved, and Paved and its successors and assigns have an unconditional and unlimited right to use, reproduce, modify, and disclose such Feedback without any compensation or attribution.
14. Confidentiality. During the Term, and after termination of the Agreement for any reason, until such time as the "Confidential Information" (as defined below) is no longer protectable under applicable law, neither party will use or disclose any "Confidential Information" of the other party except as specifically contemplated herein. "Confidential Information" means information that: (a) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, Paved’s Confidential Information shall include, without limitation, all aspects of the Platform and Paved’s Suppression Lists. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this paragraph by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party’s Confidential Information to the disclosing party.
15. Non-Circumvention. Advertiser recognizes that Paved has proprietary relationships with the Publishers that participate on the Platform. Other than through the Platform as contemplated under the Agreement, Advertiser agrees not to circumvent Paved’s relationship with its Publishers, or otherwise request, solicit, hire, contract for or otherwise obtain, directly or indirectly, advertising, marketing or promotional services similar to the services provided by and through the Platform from any Publisher during the Term and for the one (1) year period following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that it already obtained such services from any such Publisher prior to the Effective Date, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this paragraph will not be adequate and that Paved shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Advertiser in an amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher(s) in violation of this paragraph for the prior twelve (12) month period; and/or (c) any and all other remedies available to Paved at law or in equity.
16. Disclaimer of Warranties. THE PLATFORM AND TRACKING CODES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE PLATFORM AND TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. PAVED HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE PLATFORM AND TRACKING CODES. PAVED MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE CAMPAIGNS CONTEMPLATED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
17. Limitation of Liability. IN NO EVENT SHALL PAVED BE LIABLE TO ADVERTISER FOR: (a) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY; OR (b) MORE THAN THE CAMPAIGN PAYMENTS PAYABLE BY ADVERTISER HEREUNDER, FOR THE PRIOR TWELVE (12) MONTHS PRIOR TO THE ACT GIVING RISE TO THE ASSERTED CLAIMS, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL PAVED BE LIABLE TO ADVERTISER FOR ANY ACTIONS OF PUBLISHER, INCLUDING, BUT NOT LIMITED TO, ANY DECISION BY A PUBLISHER TO REFUSE TO RESCHEDULE A CAMPAIGN. THE PARTIES ACKNOWLEDGE THAT THE MUTUAL PROMISES CONTAINED HEREIN REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
18. Waiver. No delay or failure by either party to exercise any right under the Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided for herein. A waiver of default shall not be a waiver of any other or subsequent default.
19. Governing Law/Venue/Attorneys’ Fees. The Agreement shall be construed in accordance with and governed by the laws of the State of New York. The parties agree that with regard to any dispute, claim or demand, arising out of this Agreement, they will first attempt to negotiate together in good faith in an effort to reach amicable resolution of the matter. If those efforts are unsuccessful, the Parties agree to submit all disputes to binding arbitration before a single arbitrator in New York under the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator will have full authority to order specific performance and award damages, consistent with the limited liability terms set forth in Paragraph 16 and/or Applicable Law. The decision of the arbitrator will be final and binding. In the event that arbitration is deemed not to apply, and any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, it must be brought exclusively in federal or state courts located in New York, New York, United States of America. Advertiser hereby submits to the jurisdiction and venue of such courts and waive any objection based on inconvenient forum. Advertiser agrees to indemnify Paved for all of its reasonable attorneys' fees and costs incurred as a result of any action, suit, proceeding or claim brought by Advertiser or Paved in which Paved is found to be the prevailing party. ADVERTISER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING UNDER OR IN RELATION TO THIS AGREEMENT. Advertiser agrees that it may bring claims only in its individual capacity and not as a plaintiff or class member in any purported class action or representative action.
20. Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter. Advertiser agrees that Paved may amend this Agreement in its sole discretion, and it will be bound by any changes to this Agreement in exchange for Advertiser’s continued use of the Platform and Services. When Paved amends this Agreement, Paved shall provide Advertiser with written notice via email or upon Platform login that an updated version of the Agreement has been posted to the Platform. Advertiser’s continued use of the Platform or Services following the notice of such amendment will signify and be deemed Advertiser’s assent to and acceptance of the revised Agreement.
21. Severability. If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
22. Relationship of the Parties. Advertiser and Paved are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Advertiser will have no authority to make or accept any offers or representations on Paved’s behalf. Advertiser will not make any statement, whether on its site or otherwise, that reasonably would contradict anything in this Agreement.
23. Assignment. Neither party shall, without the prior written consent of the other party, assign its rights or delegate its duties under the Agreement, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either party may, in the event of a merger, acquisition or sale of substantially all of such party’s assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other party. The provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
24. Force Majeure. Advertiser nor Paved shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, pandemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
25. Third Party Beneficiary. Advertiser acknowledges and agrees that Publisher is an intended third party beneficiary of the representations and warranties made to Paved under this Agreement.
26. Electronic Signatures and Representation on Authority of Parties Executing. The person executing this Agreement represents and warrants that they are duly authorized and have legal capacity to execute this Agreement on behalf of Advertiser. Advertiser acknowledges and agrees that Advertiser accepts this Advertiser Agreement via electronic means rather than handwritten signature ("Electronic Acceptance"). Advertiser acknowledges and agrees that by creating an account or clicking the button to accept this Advertiser Agreement, Advertiser is submitting a legally binding electronic signature and is entering into a legally binding contract. Advertiser acknowledges that Advertiser’s electronic submission constitutes Advertiser’s agreement and intent to be bound by this Advertiser Agreement. Each party represents and warrants to the other that the execution of the Agreement and the performance of such party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.