Paved

Paved Publisher Agreement

Effective as of March 02, 2022

At Paved, our goal is to bring publishers and advertisers together to create efficient and effective sponsored content campaigns that can help you grow the customer base for your product or business.

This Paved Publisher Agreement ("Publisher Agreement") is entered into by and between you ("Publisher") and Paved Marketing, Inc. ("Paved"), on the date that Publisher clicks to accept this Agreement (the "Effective Date") by and through the Platform (as defined below). This Publisher Agreement covers Publisher’s access to and use of the services and software provided by Paved and sets forth the parties’ respective rights and obligations concerning Paved offering Publisher sponsorship opportunities ("Campaigns") to Paved’s third party advertising partners ("Advertisers") on a fixed fee basis. This Publisher Agreement incorporates by reference Paved’s Privacy Policy (located at www.paved.com/privacy) as if fully stated herein, and together with any insertion order(s) agreed to by Paved and the Publisher, are collectively the "Agreement". In the event of a conflict between an insertion order and the Publisher Agreement or Privacy Policy, the insertion order shall control.

1. Platform; Services. Pursuant to the terms of the Agreement, Paved grants Publisher access to Paved’s proprietary Platform. For purposes of the Agreement, "Platform" means, collectively, Paved’s marketplace for buying and selling email sponsorships and other marketing sponsorships, Paved’s ad network, Paved’s ad serving technology, Paved’s newsletter workflow tools and sponsorship booking tools, as well as all software programs, applications, application programming interfaces (APIs), technology, features, functionality, documentation and content used in connection with the Publisher/Advertiser platform, including the web-based administration services and interface, as may be modified in accordance with the Agreement from time-to-time. Through use of the Platform, Publisher can post information pertaining to its proprietary email subscriber list or marketing database(s) (collectively, "Publisher Subscriber List") and information pertaining to its blog or website, as well as the fixed fee rates that Publisher would like to charge to prospective Advertisers in connection with Campaigns. In connection with the Campaigns, Publisher may send Creative (as defined below) via email ("Publisher Email") to individuals whose records are contained within the Publisher Subscriber List. When an Advertiser selects to run a Campaign with a Publisher via the Platform, Publisher may include Creative from that Advertiser in Publisher Email either as an ad placement or as a dedicated email on behalf of that Advertiser, or may include Creative within blog posts or promotions on Publisher’s website based on the Campaign type (the "Services"). All Publisher Email disseminated by Publisher pursuant to the Agreement must be transmitted to email addresses contained within the Publisher Subscriber List.
2. Sub-Marketers. For purposes of the Agreement, any reference to Publisher shall include any and all in-house and/or third party marketing agents, partners, affiliates and/or publishers providing services to and/or on behalf of Publisher in connection with the Services contemplated hereunder (collectively, "Sub-Marketers"). Publisher shall remain, at all times, responsible and fully liable for any and all acts and/or omissions of its Sub-Marketers, and for ensuring that each such Sub-Marketer complies with any and all obligations, restrictions and other terms applicable to Publisher under the Agreement.
3. Publisher Representations and Warranties. Publisher 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 executed and delivered, 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, Publisher Email, Publisher Subscriber List and Sub-Marketers, will comply with any applicable law, rule or regulation, including, but not limited to the CAN-SPAM Act of 2003, as amended ("CAN-SPAM"), Canada’s Anti-Spam Legislation ("CASL"), the European Union’s General Data Protection Regulation ("GDPR"), California Consumer Privacy Act ("CCPA"), 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 ("FTC Privacy Report"), copyright, trademark, U.S. patent, or any other third party right ("Applicable Law"); and (e) all Publisher Email shall, at all times during the Term, link to an up-to-date privacy policy that Publisher represents and warrants complies with all Applicable Law and is followed by Publisher ("Publisher Privacy Policy").
4. Creative.

(a) Creative. Paved shall provide Publisher with access (either through the Platform or as otherwise determined by Paved) to certain Advertiser-provided marketing creative, including copy, images, graphics, banner ads and links, to be used in connection with Publisher’s Services ("Creative"). No copy, images, graphics, banner ads, links or process other than the Creative may be used by Publisher in connection with the Services without first obtaining the prior express written permission of Paved in each instance. If Publisher makes any edits to the Creative submitted by the Advertiser (including, but not limited to, changing the copy, cropping images, or altering Creative to be more suitable for the Publisher audience in any way), Publisher must submit the revised Creative to Paved and the Advertiser for final approval before using that Creative in a Campaign. Prior to publication, Publisher must either show a mockup of the Creative to be published to Advertiser via the Platform, or confirm the mockup generated by Paved matches what the Publisher will send. In the event Publisher fails to do so and Advertiser objects to Creative, then Advertiser shall only be required to pay fifty percent (50%) of the applicable fee for that Campaign, and Publisher shall only be entitled to fifty percent (50%) of the applicable revenue. In the event Publisher fails to do so more than once and Advertiser objects to Creative, then the Advertiser shall not owe any payment to Paved and Publisher will not be paid for the Campaign. Without limiting the foregoing, if the Advertiser is purchasing a dedicated email campaign, the applicable Advertiser shall have final approval on the creation of the "subject line" used in connection with the dedicated email from Publisher sent hereunder. The parties understand and agree that the applicable Advertiser is the sole owner of any and all intellectual property rights associated with the Creative. For the Term (as defined below) of the Agreement only, Paved grants to Publisher on behalf of the applicable Advertiser a limited, revocable, non-transferable, non-exclusive, royalty-free license to use the Creative solely and exclusively as necessary to perform its Services hereunder. Except as expressly set forth in this Section 4, nothing contained in the Agreement will grant to Publisher any right, title or interest in or to the Creative.

(b) Creative Disclaimer. Advertisers are solely responsible for the accuracy, completeness, appropriateness or usefulness of the Creative, and any and all product claims made in connection therewith. Paved does not represent or warrant that the Creative is accurate, complete or appropriate. Paved undertakes no responsibility to monitor or otherwise police the Creative or other information provided by Advertisers. Publisher understands and agrees that Paved will not be responsible, under any circumstances, for the Creative and Paved will incur no liabilities to Publisher in connection with same.

(c) Cancellation. Paved or the applicable Advertiser shall have the right to cancel or reschedule a Campaign provided that Publisher is provided notice at least seven (7) days prior to the Campaign start date. In the event that Paved or the applicable Advertiser desires to cease the use of any Creative in an active Campaign (including any portion of such Creative), Publisher shall cease the distribution and use of same in connection with the Publisher Email no more than forty-eight (48) hours following Paved’s written request.

5. Payment, Tracking, and Campaign Performance.

(a) Payment. Paved shall pay Publisher the amount earned based on the applicable fixed fee rate for each active Campaign out of the amount received by Paved from the applicable Advertiser, less the Platform fee displayed in the Platform when Campaigns are requested ("Campaign Revenue"). Paved shall make Campaign Revenue payments within thirty (30) days of the end of the month in which it receives payment from the Advertiser for the generated Campaign Revenue, provided the Campaign has run. Paved will pay Publisher using the payment method specified by Publisher within the Platform. Paved shall have no obligation to pay Publisher any prospective Campaign Revenue for which Paved does not receive the corresponding payment from the applicable Advertiser. Paved may recoup amounts paid to Publisher in connection with refunds issued by Paved to an Advertiser by deducting those amounts from the Publisher’s account. Credit card chargebacks will be treated in the same manner as refunds. Publisher agrees to pay all sales, use, excise and other taxes which may be levied upon either party in connection with the Agreement, except for taxes on Paved’s income. Paved shall have no obligation to pay Publisher for Campaign Revenue that was generated in breach of the Agreement. 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) Tracking and Campaign Performance. Unless otherwise approved in writing by Paved, Campaigns must include, in unaltered form, a unique tracking code provided by Paved to Publisher ("Tracking Codes"). 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 for any Campaign (as measured by Paved’s tracking and reporting) are thirty percent (30%) or more below what the Publisher stated in the Profile Page, the Publisher will need to work with Paved to offer a single makegood to the applicable Advertiser(s). If unique clicks for any Campaign are fifty percent (50%) or more below what the Publisher stated in the Profile Page, Paved reserves the right to credit the Advertiser for the Campaign and will not be obligated to pay the Publisher any Campaign Revenue for the applicable Campaign.

6. Abandoned Payments. Publisher accounts that are inactive for more than one (1) year may be considered dormant or abandoned. If this happens and there are Campaign Revenue funds in the account, but Publisher’s payout methods are not current, Paved reserves the right to keep any abandoned funds, or if applicable escheat laws require, the funds in Publisher’s account will be turned over to the state of your last known address on file with Paved. Each state may have its own laws as to when abandoned funds are subject to escheat. If those laws apply, we will make all reasonable efforts to contact you before transferring the funds in your account to the appropriate state or region. For accounts with addresses outside the US that are subject to escheat, the funds will be transferred to the State of Delaware.
7. Other Publisher Requirements.

(a) Profile Page: Publisher may create a Profile Page on the Platform to promote its Subscriber List and email newsletters to prospective Advertisers using the Platform. The Platform will guide Publisher in the creation of this Profile Page, which will include Publisher’s logo and/or trademarks. Creation of the Profile Page authorizes Paved to use Publisher’s name, logo and trademark on the Platform, Paved’s website, and in marketing materials. Once completed the Profile Page is part of the Platform and can be maintained or removed by Paved at its sole discretion after the Publisher has left the Platform for any reason or this Agreement is terminated.

(b) Subscriber List Statistics and Campaign Performance. Publisher agrees to share Publisher Subscriber List statistics and email campaign performance with Paved, including but not limited to subscriber count, opens, clicks, open rates, click-through rates, and prior campaign performance. Publisher certifies that its subscriber count(s) are accurate and exclude any email addresses which have previously bounced or unsubscribed, or any email addresses where the Publisher has been unable to deliver an email to the subscriber. Publisher also certifies that performance and engagement statistics (subscriber count, opens, clicks, open rates or click-through rates) provided to Paved are accurate at the time of reporting. In addition, Publisher agrees to maintain or increase the current level of email campaign performance listed on its Profile Page, and in doing so, is specifically representing that Publisher does not expect a material decrease in the size of its Publisher Subscriber List or performance of its Campaigns.

(c) Proof of Campaign Delivery. Publisher must, within two (2) business days of the Campaign run date listed within the Platform or on a Campaign insertion order, provide confirmation to Paved, either electronically or in writing, stating whether the components of the Campaign have been delivered. Publisher also must, within two (2) business days of the Campaign run date, provide a screenshot to Paved showing delivery confirmation from Publisher’s email service provider and either a screenshot or an email copy of the newsletter as proof of send. The email service provider screenshot must include the number of emails sent, number of spam complaints, number of bounces, number of unique opens, and number of ad clicks.

(d) Fraud and Promotional Abuse. Publisher agrees to not engage in fraudulent behavior or promotional abuse to manipulate or inflate Campaign results (including, but not limited to click-spamming, non-human or bot traffic, malvertising-related activities, click injections, or other instances of fraud). Publisher agrees that should Paved, in its sole discretion, find such behavior or promotional abuse, Paved has no obligation to pay Publisher any Campaign Revenue that Paved deems to be earned by such behavior and has the right to immediately terminate this Agreement. If it is determined, in Paved’s sole discretion, that Publisher’s actions covered by this paragraph have caused Paved to incur additional hosting or other costs, Paved shall have the right to charge Publisher for those costs, and Publisher agrees that they are responsible for such costs.

(e) Email Policies, Spam, and Blacklisting. Any and all costs and/or fees charged to Publisher by its Internet Service Provider(s) related to responding to and/or managing allegations of "spam" or any other unauthorized usage complaints received from Publisher Email recipients, regulatory agencies or otherwise shall be borne exclusively by Publisher. Publisher shall: (a) respond to all complaints in connection with the Campaigns within three (3) business days after Publisher becomes aware of the subject complaint(s); and (b) provide Paved with a copy of every complaint, immediately, upon Publisher’s receipt thereof. Publisher is solely responsible for all Consumer complaints in connection with the Campaigns. If, at any time, Publisher is identified on an industry Blacklist (as defined below) as a result of actions attributable to Publisher, then Publisher shall have no more than twenty-four (24) hours from the receipt of Blacklist notification in order to remedy the situation. If, after the expiration of the allotted twenty-four (24) hours, Publisher has been unable or unwilling to obtain satisfactory resolution (as reasonably determined by Paved), then Paved may terminate the Agreement immediately for Publisher’s material breach. For purposes of the Agreement, "Blacklist" means any and all industry lists of individuals or entities identified as disseminators of spam. Publisher agrees that it is responsible for ensuring that Publisher Email does not generate spam complaints in excess of industry norms, as determined by Paved. Publisher agrees that Paved’s determination whether Publisher’s number of spam complaints is within industry norms shall be final, binding and conclusive for all purposes under the Agreement. If Paved determines that Publisher’s number of spam complaints is in excess of industry norms, Paved reserves the right to immediately terminate the Agreement upon written notice (with email sufficing as written notice).

8. Suppression Lists. Suppression lists are lists of email addresses that cannot receive commercial communication or emails for any reason, including but not limited to, unsubscribe requests or requests to opt out of third party communications in the case of dedicated email, and may be generated by Paved, by the applicable Advertiser, or by Publisher, all of which are collectively referred to herein as "Suppression List". With respect to any Suppression List provided by Paved to Publisher (at Paved’s sole discretion or by Advertiser request), Publisher shall: (a) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of the Agreement; (b) use such Suppression List to remove any and all email addresses contained therein from the receipt of the applicable Campaign(s); (c) not retain a copy of any Suppression List following termination of the Agreement; (d) not use any Suppression List for purposes of email appending in any manner whatsoever; (e) hold any Suppression List made available by Paved and any applicable Advertiser(s) in trust and confidence; and (f) not disclose any Suppression List made available by Paved to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms of the Agreement. Publisher further agrees and acknowledges that: (i) it has downloaded and removed the domains located on the Federal Communications Commission’s wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in mailings hereunder; and (ii) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained therein will be removed before sending any mailings hereunder. With respect to any Suppression Lists generated by Publisher, Publisher agrees to follow all applicable laws when generating or using the suppression list, as well as any other obligations set forth herein.
9. 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 Publisher a limited, revocable, royalty-free, non-exclusive, non-transferable license to use the Platform for the Term only. Publisher acknowledges that the rights granted under the Agreement do not provide Publisher 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 Publisher hereunder are reserved by Paved.
10. No Tampering & API Restrictions. Publisher 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. Publisher understands and agrees that it is only permitted to use the API, 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, Publisher 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 Publisher 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 Publisher has received through same.
11. 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.
12. Audit. Publisher agrees that, at all times during the Term, it shall maintain accurate books and records relating to its Services provided under the Agreement, and ensure Publisher’s compliance with Applicable Law and the terms of the Agreement (collectively, the "Audit Items"). Publisher 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 Publisher 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 Publisher’s Services hereunder, then the audit shall be at the sole cost and expense of Publisher.
13. Indemnification. Publisher 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 Publisher; (b) actual or alleged violation of Applicable Law; (c) claim related to the Services, Publisher Email, Publisher Privacy Policy and/or Publisher Subscriber List; and/or (d) act or omission of any Sub-Marketer. Paved agrees to indemnify, defend and hold harmless Publisher, 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.
14. Feedback. If Publisher 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.
15. 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 Services, the Platform and any 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 Section 14 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.
16. Non-Circumvention. Publisher recognizes that Paved has proprietary relationships with the Advertisers that participate on the Platform. Any attempt to broker third party agreements to deliver Services without first obtaining Paved’s written authorization is strictly prohibited. Other than through the Platform as contemplated under the Agreement, Publisher agrees not to circumvent Paved’s relationships with its Advertisers, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the Services provided by and through the Platform to any Advertiser during the Term and for the one (1) year period following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Publisher can show that any such Advertiser already obtained such services from Publisher prior to the Effective Date, then Publisher shall not be prohibited from continuing such relationship. Publisher 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 Publisher in an amount equal to one hundred percent (100%) of the fees paid to Publisher 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.
17. Disclaimer of Warranties. THE SERVICES, PLATFORM, CREATIVE, SUPPRESSION LISTS 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 SERVICES, PLATFORM, CREATIVE, SUPPRESSION LISTS AND TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. PAVED HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE SERVICES, PLATFORM, CREATIVE, SUPPRESSION LISTS AND/OR 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.
18. Limitation of Liability. IN NO EVENT SHALL PAVED BE LIABLE TO PUBLISHER 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 REVENUE PAYMENTS PAID BY PAVED TO PUBLISHER 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 PUBLISHER FOR ANY ACTIONS OF ADVERTISERS, INCLUDING, BUT NOT LIMITED TO, ANY DECISION BY AN ADVERTISER TO CANCEL OR 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.
19. 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.
20. 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. Publisher hereby submits to the jurisdiction and venue of such courts and waive any objection based on inconvenient forum. Publisher 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 Publisher or Paved in which Paved is found to be the prevailing party. PUBLISHER 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. Publisher 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.
21. 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. Publisher 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 Publisher’s continued use of the Platform and Services. When Paved amends this Agreement, Paved shall provide Publisher with written notice via email or upon Platform login that an updated version of the Agreement has been posted to the Platform. Publisher’s continued use of the Platform or Services following the notice of such amendment will signify and be deemed Publisher’s assent to and acceptance of the revised Agreement.
22. 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.
23. Relationship of the Parties. Publisher 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. Publisher will have no authority to make or accept any offers or representations on Paved’s behalf. Publisher will not make any statement, whether on its site or otherwise, that reasonably would contradict anything in this Agreement.
24. 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.
25. Force Majeure. Publisher 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.
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 Publisher. Publisher acknowledges and agrees that Publisher accepts this Publisher Agreement via electronic means rather than handwritten signature ("Electronic Acceptance"). Publisher acknowledges and agrees that by creating an account or clicking the button to accept this Publisher Agreement, Publisher is submitting a legally binding electronic signature and is entering into a legally binding contract. Publisher acknowledges that Publisher’s electronic submission constitutes Publisher’s agreement and intent to be bound by this Publisher 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.