Komli Inc. Standard Terms
and Conditions for Publishers
Komli Incorporated
(“Komli”), a Delaware Corporation, and Publisher, enter into this Publisher
Network Agreement (“Agreement”) to establish the terms and conditions by which
Publisher may enter the Komli Network and display advertisements on behalf of
Komli Customers (“Advertisers” or “Customers”).
DEFINITIONS
“Ad” or “Creative” means
the graphic or text file(s) provided to Publisher to market on behalf of
Advertiser and/or Komli.
“Advertiser” means Komli and/or the advertiser or
advertising agency providing Ads to Komli for use on Publisher's Website(s) as
specified herein.
“Approved Websites” means the Publisher’s domain(s) and/or
specific root URLs approved by Komli.
“Komli Code” means pixels, intellectual
property or other computer code provided by Komli for use by
Publisher.
“Komli Network” means Komli's affiliated group of third-party
Websites by which Komli may insert Ads.
“Komli System” refers to
the collection of software, including ad serving and measurement technologies
that Komli uses to provide services to both advertisers and publishers.
“CPM”
means a campaign for which Publisher shall be paid on a Cost Per Thousand
Impressions basis as measured by Komli.
“Click, Click-Thru or Click-Through”
means the activation of a hyperlink using a mouse or other input device. The
click-through is essential to the interactivity of online advertising.
“Click-Through Rate” or “
“Impressions” means
the number of times an Ad is served to, and received by, a unique visitor on
Publisher's Website or other media as measured by Komli.
“Incentivized Traffic” means a Website where Ads are placed where Users have some sort of
incentive to click through on Ads.
“Network IP” means the Ads, Komli Code or
other intellectual property made available to Publisher in connection with its
performance under this Agreement.
“Prohibited Conduct” means conduct, during
the course of performance of this Agreement that is listed or related to the
proscribed conduct listed in Section 2.
“Publisher Media” shall mean the
Website, search engine or other electronic media on which Publisher places
Ads.
“Unique Click” means the number of times, as recorded by Komli’s server,
a User viewing Publisher's Media, as identified by a cookie or IP address,
clicks on a Creative, provided however, that a click on a specific Creative by a
particular User shall only be counted as a Unique Click once every 24-hour
period.
“User” means any person accessing Publisher Media.
“Website” means an HTML document containing a set of information available via the
Internet.
KOMLI
1. Komli
Network
(a) Membership: Membership in the
Network is subject to prior approval by Komli. Komli reserves the right to
refuse service to any new or existing Publisher for any reason, in its sole
discretion. Approval of membership in the Network is limited only to the domains
and/or specific root URLs for which Publisher has applied for approval by Komli.
Komli reserves the right, in its sole discretion and without liability, to
reject, omit or exclude any Publisher or Website for any reason at any time with
or without notice to the Publisher and regardless of whether such Publisher or
Website was previously accepted. Without limiting the foregoing, Komli reserves
the right to require a potential or existing Publisher to submit detailed
descriptions or explanations of the Publisher’s Website(s) or application(s)
functionality and back-end technology through a questionnaire or survey. Refusal
to participate or answers deemed unsatisfactory constitutes grounds for
non-acceptance or termination from the Network. This Agreement is voidable by
Komli immediately if Publisher fails to disclose, conceals or misrepresents
itself in any way. Unless otherwise advised due to technological issues by
Komli, any person, Publisher, or affiliated group may have only one account,
however, each account may include multiple Websites/domains. In the event that a
Publisher signs up more than one Website/domain, and it has been approved by
Komli, each and every additional Website/domain is obligated and bound by these
same terms and conditions. In any event, Komli reserves the right to reject or
approve any additional Website(s), and is under no obligation to accept any
Website(s), even if the additional Website(s) is the property of an already
approved Publisher. All activity for a given account will be consolidated into
one report.
(b) Komli
Websites: For purposes of this Agreement, all Websites that are
owned, operated or hosted by or on behalf of Komli, including, without
limitation, Komli's branded Website at http://www.Komli.com, are referred to
herein collectively as the "Komli Websites." You agree that you will not use the
Komli Websites or any content therein or data obtained therefrom for any
purposes other than to fulfill this Agreement and that you will not disseminate
any of the information contained on Komli Websites, without prior consent from
Komli. You agree that you will not use any automated means, including, without
limitation, agents, robots, scripts, or spiders, to access or manage your
account with Komli or to monitor or copy the Komli Websites or the content
contained therein except via automated means expressly made available by Komli,
if any, or authorized in advance and in writing by Komli (for example,
Komli-approved third-party tools and services). You will not interfere or
attempt to interfere with the proper working of the Komli Websites or any
program thereon, or the Komli System. Without limitation to the foregoing, you
further agree that you will not take any action that imposes an unreasonable or
disproportionately large load on the Komli Websites, any programs thereon, or
Komli's infrastructure, as determined by Komli.
(c) Services: Publisher understands and
agrees that from time to time the Komli System hereunder may be inaccessible,
unavailable or inoperable for any reason, including, without limitation: (i)
equipment malfunctions; (ii) periodic maintenance procedures or repairs which
Komli may undertake from time to time; or (iii) causes beyond the control of
Komli or which are not reasonably foreseeable by Komli, including, without
limitation, interruption or failure of telecommunication or digital transmission
links, hostile network attacks, the unavailability, operation, or
inaccessibility of Websites or interfaces, network congestion or other failures.
While Komli will attempt to provide the services on a continuous basis,
Publisher acknowledges and agrees that Komli has no control over the
availability of the services on a continuous or uninterrupted basis. Publisher
also understands and agrees that Komli is not responsible for the functionality
of any third-party Website or interface. Terms of this Agreement are subject to
Komli hardware, software, and bandwidth traffic limitations. Failure to deliver
because of technical difficulties does not represent a failure to meet the
obligations of this Agreement. Komli reserves the right to discontinue offering
any of the Komli Systems and/or Komli Websites at any time. Except as otherwise
specified by Komli, Publisher agrees that it will direct all communications
relating to any Komli Website or your participation therein directly to Komli
and not to any other entity.
2.
Website Content and Prohibited Conduct
(a) Pre-approval Required: Publishers
that have Websites that relate to or have any characteristic of the following
shall be approved on a case by case basis: (i) excessive ads, app – quest/test,
user content (blogs, etc.), (ii) controversial issues, religion, sexual
orientation and/or edgy humor, (iii) wrestling, (iv) anime, (v) old content,
and/or (vi) poor quality design and functionality.
(b) Prohibited Conduct: Komli does not
accept Websites that produce, relate to or have characteristics of Prohibited
Conduct. “Prohibited Conduct” is defined as:
(i) Ad Placement &
Tracking: Publisher shall not: (1) Place Creatives or Ads in emails without
prior consent and tracking from Komli; (2) Intentionally place Creatives on
blank web pages or on web pages with no content; (3) Stack Creatives (e.g. place
on top of one another so that more than 2 ads are next to each other); (4) Place
Creatives on non-approved Websites or web pages, or in such a fashion that may
be deceptive to the User; (5) Incentivize offers or create the appearance to
incentivize offers; (6) Place statements near the Ads requesting that Users
"click" on the Ad (i.e., "Please click here") or "visit" the sponsor (i.e.,
"Please visit our sponsor"); (7) Place misleading statements near the Ad (i.e.,
"You will win $5,000."); (8) Redirect traffic to a Website other than that
listed by the particular Advertiser; (9) Ask Users to take advantage of other
Ads or offers other than those listed by the particular Advertiser; (10) Serve
Creatives, or drive traffic to such Creatives, using any downloadable
applications without the prior written approval of Komli, which, if provided, is
subject in each case to the following condition: Creatives delivered in approved
downloadable applications may only be shown once per User session when the
application is active, enabled and clearly recognizable by the end User as being
active and enabled. Serving Creatives at anytime when the downloaded application
is not active is strictly prohibited and grounds for immediate termination
without pay; (11) Use invisible methods to generate impressions, clicks, or
transactions that are not initiated by the affirmative action of the end-user;
(12) Attempt in any way to alter, modify, eliminate, conceal, or otherwise
render inoperable or ineffective the Website tags, source codes, links, pixels,
modules or other data provided by or obtained from Komli that allows Komli to
measure ad performance and provide its service.
(ii) Websites:
Publisher shall not place any Creative, Ads or Network IP on Web Sites that
contain, promote, reference or have links to: (1) profanity, sexually explicit
materials, hate material, promote violence, discrimination based on race, sex,
religion, nationality, disability, sexual orientation, age, or family status, or
any other materials deemed unsuitable or harmful to the reputation of Komli; (2)
software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM’s,
or illegal MP3 activity.; (3) illegal activities, deceptive practices or
violations of the intellectual property or privacy rights of others; (4)
Websites under construction, hosted by a free service, personal home pages, or
do not own the domain they are under; (5) charity clicks/donations, paid to
surf, personal Websites, Website applicants who are not the owner of or employed
by the applying Website, active x downloads, no content (link site), all
affiliate links, or incentivized traffic; (6) Promote activities generally
understood as Internet abuse, including but not limited to, the sending of
unsolicited bulk electronic mail or the use of Spyware. For purposes hereof,
“Spyware” shall mean computer programs or tools that (i) alter a computer User’s
browser or other settings or use an ActiveX control or similar device to
download ad supporting software without providing fair notice to and obtaining
affirmative consent; (ii) prevent a computer User’s reasonable efforts to block
the installation of or disable or remove unwanted software; (iii) remove or
disable any security, anti-spyware or anti-virus technology on a User’s
computer; (iv) send email through a User’s computer without prior authorization;
(v) open multiple, sequential, stand-alone advertisements in the consumer’s
Internet browser which cannot be closed without closing the Internet browser or
shutting down the computer or (vi) other similar activities that are prohibited
by applicable law.
(iii). Search & Miscellaneous: Publisher
shall not: (1) Violate guidelines of any search engines being utilized; (2)
Engage in search engine spam, doorway pages, cloaking, etc.; (3) Bid on any
trademarked name or terms in any PPC/“keyword”/”adword”/campaign; (4) Conduct
search Ads falsely suggesting a link between Komli and a third- party or
otherwise infringing on a third-party’s intellectual property rights; (5) Engage
in any advertising via facsimile or telemarketing; (6) Engage in any misleading
or deceptive conduct.
3. Ad Content and
Placement
(a) Compliance with Industry
Standards: Publisher agrees to undertake and complete the
services as specified by the Komli Network, including all Ad placement
restrictions or channels specified, in accordance with the highest industry
standards. Publisher shall position the Ads in such a manner to assure that they
are fully and clearly visible to consumers and displayed in a similar manner as
other merchants included in the Website.
(b) No Modifications to Creative, Code or Network
IP: Except as permitted under this Agreement, Publisher may not
alter, copy, modify, take, sell, re-use, or divulge in any manner any Creative,
Network IP or computer code provided by Komli without Komli’s prior written
consent. Publisher may not copy Komli's Ads and display them from Publisher's
Website directly; redirect traffic to a Website other than that listed by Komli
or the Advertiser; or ask Users to take advantage of other Ads or offers other
than those listed by Komli or Advertiser. Any Komli content which is copied,
changed or altered without prior written consent will result in non-payment for
the campaign and may result in termination. Any approved modifications to Komli
Code or Network IP shall be owned solely by Komli.
(c) Requirements: Publisher shall be
solely responsible for (i) managing its advertising content exclusions in the
Komli interface, and (ii) placing Ads on the Publisher Media, which placement
shall be subject to the terms and conditions of this Agreement. Ads may only be
placed on Approved Websites. Komli pop-up or pop-under window cannot be launched
from Websites that launch more than a total of one pop window, including the
Komli pop. Skyscrapers or
wide skyscrapers and half page formats cannot be placed on the same page.
Publisher will not place ads on blank pages, on pages with no content, on top of
one another, on non-approved Websites, or in such a fashion that may be
deceptive to the visitor. Publisher agrees to use the Komli Code
provided by Komli for displaying an Ad not more than ONCE per page view.
Placement of ads in email must be done after notifying Komli so appropriate
tracking measures can be put in place.
(d)
Default Ads: Publisher
acknowledges and agrees that Komli may not be able to fill 100% of advertising
requests sent to its servers with paying Ads. If Publisher chooses not to
specify a default redirect ad, Komli will display so-called 'house' and/or
'AdCouncil' ads on Publisher's Website when paid advertising is unavailable.
Komli may also display so-called 'house' and/or 'AdCouncil' ads on Publisher's
Websites when technical difficulties require it. So-called 'house' and
'AdCouncil' ads are not paid advertising. Under no circumstances does Komli
guarantee to provide any percent fill of paid advertising to a
Website.
4. Network
Quality
Komli will not tolerate or
accept any activities it deems harmful or potentially damaging to its reputation
and/or business, or that of its customers and/or clients including but not
limited to the activities stated in this Agreement. Komli employs individuals
for the express purpose of monitoring the Publisher's Websites within our
network to ensure that our customers and clients are receiving the highest
quality campaigns. Komli has also developed an advanced anti-fraud system and
regularly audits Publisher's traffic. Publishers that commit fraudulent
activities, including false clicks, false impressions, and incentivized clicks,
will have their account permanently removed from the Network and may not be
compensated for fraudulent traffic. Komli has several fraud
mechanisms at its disposal that will detect most forms within a few days of the
initial activity. All Creatives must be served from a Komli server or serving
location, or through a Komli approved 3rd-party-hosted server. Stored images
that are loaded from a different location will not count towards any statistic
or payment.
5. Proprietary
Rights
(a) Licenses: At the agreed upon pay-out
price and provided that Publisher complies with all provisions of this
Agreement, Komli hereby grants to Publisher a nonexclusive, limited, revocable
license to use, execute, and display the Network IP solely for purposes of
performing its other obligations hereunder. Except for the limited license
expressly granted in this Section, nothing in this Agreement shall be construed
as Komli granting Publisher any right, title or interest in Network IP.
Publisher acknowledges and agrees that Komli and/or Advertiser owns all right,
title and interest in and to the Network IP and all related intellectual and
proprietary rights of any kind anywhere in the world. Publisher’s use of the
Network IP or the results created thereby, or disseminating or distributing any
of this information except as expressly permitted by this Agreement is strictly
forbidden and will result in the termination of this limited license and may
result in Publisher being held liable under applicable law.
(b)
Intellectual Property
Ownership: Subject to the limited licenses granted to Komli and
Publisher hereunder, each party shall own and shall retain all right, title and
interest in its trade names, logos, trademarks, service marks, trade dress,
Internet domain names, copyrights, patents, trade secrets, know how and
proprietary technology, including, without limitation, those trade names, logos,
trademarks, service marks, trade dress, copyrights, patents, testimonials,
endorsements, know how, trade secrets and proprietary technology currently used
or which may be developed and/or used by it in the future ("Intellectual
Property"). Except as provided in this Agreement, neither party may distribute,
sell, reproduce, publish, display, perform, prepare derivative works or
otherwise use any of the Intellectual Property of the other party without the
express prior written consent of such party.
(c) Data Ownership: Publisher understands
that all data, including, but not limited to, personally identifiable
information provided by Users in response to an Ad and/or any or all reports,
results, and/or information created, compiled, analyzed and/or derived by Komli
from such data is the sole and exclusive property of Advertiser and Komli and is
considered Confidential Information pursuant to this Agreement. Komli and/or its
Advertisers, in their sole discretion, shall have the right to market and
re-market the User(s) and or data without further obligation to Publisher.
Publisher shall not make any use of, copy, make derivative works from, sell,
transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make
available in any manner, such information, or any portion thereof, to any
third-party. Unless otherwise agreed to in writing by the parties, any other use
of such information is strictly prohibited.
6. Representations
and Warranties
(a) Publisher Responsibility: The parties
hereby acknowledge that Publisher is solely responsible for the method of
dissemination of the campaigns, and that Komli will not have any control over
the method of dissemination and is relying entirely on these warranties made by
Publisher.
(b) Publisher
Warranties: Publisher represents, warrants, covenants and
acknowledges that (i) it will provide and maintain the resources, personnel and
facilities suitable to perform its obligations under the Agreement; (ii) it will
comply with all applicable federal (national), state and local laws and
regulations including, without limitation, laws relating to advertising, the
Internet, privacy and unfair business practices; (iii) it will not engage in
Prohibited Conduct; (iv) it will comply with Komli’s Privacy Policy as amended
from time to time; (v) that Publisher is at least 18 years of age on the
effective date of this Agreement; and (vi) that Komli does not make any specific
or implied promises as to the successful outcome of any campaigns.
(c)
Mutual Warranties: Each
party represents and warrants to the other that (i) it has the full right,
power, legal capacity, and authority to enter into, deliver and fully perform
under this Agreement; (ii) neither the execution, delivery, nor performance of
this Agreement will result in a violation or breach of any contract, agreement,
order, judgment, decree, rule, regulation or law to which such party is bound;
and (iii) such party acknowledges that the other party makes no representations,
warranties, or agreements related to the subject matter hereof that are not
expressly provided for in the Agreement.
7. Privacy
(a) Obligations: Internet consumer
privacy is of paramount importance to Komli, its subsidiaries, and its
customers. Komli is committed to protecting the privacy of consumers, clients,
and Advertisers, and to do its part to maintain the integrity of the Internet.
Publisher therefore affirms and attests that it will adhere to fair information
collection practices with respect to its performance under this Agreement.
(b) Privacy
Requirements: Publisher agrees to the following and must clearly
post on its Website an easy to understand privacy policy that (i) is in
compliance with all federal (national, in the US compliant with FTC) guidelines
and any other applicable laws, rules and regulations with respect to online
privacy; (ii) identifies the nature and scope of the collection and use of
information gathered by Publisher and offers the User an opportunity to opt out
from such collection and use of the data; and (iii) contain language materially
similar to the following:
"We have contracted with
Komli to monitor certain pages of our website for the purpose of reporting
website traffic, statistics, advertisement 'click-throughs', and/or other
activities on our website. Where authorized by us, Komli may use cookies, web
beacons, and/or other monitoring technologies to compile anonymous statistics
about our website visitors. Komli may use this data and statistics to track
users and serve advertising based on the collected data and statistics.
However, no personally identifiable information is collected by or
transferred to any party other than the Advertiser.”
(c) Cookies: Publisher acknowledges that
(i) cookies are important devices for measuring advertising effectiveness and
ensuring a robust online advertising industry and (ii) efforts are required to
increase User awareness about the use of cookies and their role in providing
free content and other benefits to Users. Publisher agrees to take such steps
as may be commercially reasonable and appropriate to promote User awareness
about cookies or similar devices as may be identified by Komli.
8. Payment
(a) Payment Rate: Komli reserves the
right to set campaign rates, which may vary with market conditions. Publishers
will typically be paid within forty-five (45) business days after the
end-of-month. Do not invoice Komli; all Publisher invoices are discarded.
Publishers will be paid at the account level. All accounts will be settled in US
dollars or Indian Rupees (INR) depending on where the Publisher is based. No
check will be issued for any amount less than $25US or equivalent INR (“Minimum
Payment Threshold”). All unpaid earnings will rollover to the next pay period.
Any Publisher account that goes unpaid for six (6) months becomes subject to
immediate payoff and dismissal from the Network. As a condition to Komli's
obligation to make payments hereunder to Publisher, Publisher must have on file
with Komli a completed and accurate W-9 (for US-based Publisher's) or a
completed and accurate W-8 (for non-US-based Publisher's). Publisher payments
will be withheld until the appropriate taxation documents are received by
Komli. If the required tax documents are not on file with Komli within three
months of the date of a scheduled payment, Komli may charge a monthly
administrative fee, representing Komli’s cost of establishing and maintaining
Publisher's account, equal to 25% of the original balance. All payments are
based on actuals as defined, accounted and audited by Komli. Komli reserves the
absolute right to withhold payment from accounts or Publishers that violate any
of the terms and conditions set forth herein. Komli will determine, in its sole
discretion, whether acts or omissions are deceptive, fraudulent or violate this
Agreement. . Examples of such acts may include, without limitation, clicks
without referring URLs, extraordinary high numbers of repeat clicks, and clicks
from non-approved root URLs.
(b)
Breach or Fraud: If any Publisher violates or refuses to fulfill
its responsibilities, or commits fraudulent activity, Komli reserves the right
to withhold payment and take appropriate legal action.
(c) Calculation: Calculation of Publisher
earnings, including Impressions and click through numbers, shall be in Komli’s
sole discretion. In the event Publisher disagrees with any such calculation,
Publisher shall immediately send a written request to Komli detailing, with
specificity, Publisher's concerns. Thereafter, Komli will provide Publisher with
an explanation or, if such calculations are determined by Komli to be incorrect,
an adjustment. Komli’s calculations shall be final and binding. In the event no
adjustment is necessary, Publisher shall reimburse Komli for its expenses in
responding to Publisher's requests under this Section if it exceeds
USD$100.
9. Indemnity
Publisher is solely
responsible for any legal liability arising out of or relating to (i)
Publisher's Website(s), (ii) any material to which Users can link through
Publisher's Website(s), and/or (iii) any consumer and/or governmental/regulatory
complaint arising out of any campaign conducted by Publisher, including but not
limited to any spam or fraud complaint and/or any complaint relating to failure
to have proper permission to conduct such campaign to the consumer. Publisher
shall indemnify, defend, and hold harmless Komli and its officers, directors,
employees, agents, shareholders, partners, affiliates, representatives, agents
and Advertisers (collectively “Komli Parties”) harmless from and against any and
all allegations, claims, actions, causes of action, lawsuits, damages,
liabilities, obligations, costs and expenses (including without limitation
reasonable attorneys’ fees, costs related to in-house counsel time, court costs
and witness fees) (collectively “Losses”) incurred by, or imposed or asserted
against, the Komli Parties which, if true, would constitute or relate to any
claims, suits, or proceedings for (a) libel, defamation, violation of rights of
privacy or publicity, copyright infringement, trademark infringement or other
infringement of any third-party right, fraud, false advertising,
misrepresentation, product liability or violation of any law, statute,
ordinance, rule or regulation throughout the world in connection with
Publisher's Website(s); (b) any breach by Publisher of any duty, representation
or warranty under this Agreement; (c) any breach by Komli of any duty,
representation, or warranty to provide Ad(s) for placement on Publisher's
Website(s) due to any breach by Publisher of this Agreement; (d) a contaminated
file, virus, worm, or Trojan horse originating from the Publisher's Website(s);
or (e) gross negligence or willful misconduct by
Publisher.
10. Limitations of
Warranties and Liability
(a) Disclaimer of Warranties:
(b) Limitation of Liability: UNDER NO
CIRCUMSTANCES SHALL KOMLI BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF KOMLI
(c) Consideration: PUBLISHER ACKNOWLEDGES
THAT KOMLI
11. Term and
Termination
(a) Termination: This Agreement, as may
be amended, applies to Publisher for as long as Publisher distributes Ads for
Komli. Komli reserves the right to terminate any Publisher from the Network at
any time, with or without cause.
(b) Post-termination: Upon termination,
Publisher agrees to immediately remove from the Websites any and all Komli Code
and Network IP supplied to Publisher by Komli. Publisher will be paid, in the
next scheduled payment cycle following termination, all legitimate,
non-fraudulently accrued, earnings due up to the time of termination. Upon
termination all ties to referrals will be permanently severed and Publisher will
not receive nor be entitled to receive future referral commissions
hereunder.
12.
Confidentiality
Each party agrees that it
may provide the other with information that is confidential and proprietary to
that party or a third- party, as is designated by the disclosing party or that
is reasonably understood to be proprietary and/or confidential ("Confidential
Information"). Komli’s campaign rates are considered confidential. Each party
may use Confidential Information received from the other party only in
connection with and to further the purposes of this Agreement. Confidential
Information shall not be commingled with information or materials of others and
any copies shall be strictly controlled. The receiving party agrees to make
commercially reasonable efforts, but in no case no less effort than it uses to
protect its own Confidential Information, to maintain the confidentiality of and
to protect any proprietary interests of the disclosing party. Confidential
Information shall not include (even if designated by a party) information: (i)
that is or becomes part of the public domain through no act or omission of the
receiving party; (ii) that is lawfully received by the receiving party from a
third-party without restriction on use or disclosure and without breach of this
Agreement or any other agreement without knowledge by the receiving party of any
breach of fiduciary duty, or (iii) that the receiving party had in its
possession prior to the date of this Agreement. Upon termination of this
Agreement, or upon written request by Komli, Publisher must destroy or return to
Komli any Confidential Information provided by Komli under this
Agreement.
13. Choice of Law
and Attorneys’ Fees
This Agreement is governed
by the laws of the State of Delaware (USA), except for its conflict of law
provisions. The exclusive forum for any actions related to this Agreement shall
be in the state courts, and, to the extent that federal courts have exclusive
jurisdiction, in
14. Entire
Agreement and Modification
This Agreement, including
exhibits, addenda, the Komli Privacy Policy (as amended from time to time and
which is incorporated herein by reference), contains the entire understanding
and agreement of the parties and there have been no promises, representations,
agreements, warranties or undertakings by either of the parties, either oral or
written, except as stated in this Agreement. This Agreement may only be altered,
amended or modified by an instrument that is assented to by each party to this
Agreement by verifiable means, including without limitation by written
instrument signed by the parties or through a "click through" acknowledgement of
assent. No interlineations to this Agreement shall be binding unless initialed
by both parties. Notwithstanding the foregoing, Komli shall have the right to
change, modify or amend ("Change") this Agreement, in whole or in part, by
posting a revised Agreement at least five (5) days prior to the effective date
of such Change. Publisher’s continued use of the Network after the effective
date of such Change shall be deemed Publisher’s acceptance of the revised
Agreement. No change, amendment, or modification of any provision of the
Agreement by Publisher will be valid unless set forth in a written instrument
signed by an executive of both Parties with the corporate authority to do
so.
15. Assignment
No rights or obligations
under this Agreement may be assigned by Publisher without the prior written
consent of Komli. Any assignment, transfer or attempted assignment or transfer
in violation of this Section shall be void and of no force and effect. Komli and
any of its subsequent assignees may assign this Agreement, in whole or in part,
or any of its rights or delegate any of its duties, under this Agreement to any
party. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and
assigns.
16. Independent
Contractors
Each party is an
independent contractor. Any intention to create a joint venture or partnership
between the parties is expressly disclaimed. Except as set forth herein,
neither party is authorized or empowered to obligate the other or to incur any
costs on behalf of the other without the other party’s prior written
consent.
17. Marketing
Publisher shall not
release any information regarding Campaigns, Creatives, or Publishers
relationship with Komli or its customers, including, without limitation, in
press releases or promotional or merchandising materials, without the prior
written consent of Komli. Komli shall have the right to reference and refer to
its work for, and relationship with, Publisher for marketing and promotional
purposes. No press releases or general public announcements shall be made
without the mutual consent of Komli and Publisher.
18. Force Majeure
Neither party shall be
liable by reason of any failure or delay in the performance of its obligations
hereunder for any cause beyond the reasonable control of such party, including
but not limited to electrical outages, failure of Internet service providers,
default due to Internet disruption (including without limitation denial of
service attacks), riots, insurrection, acts of terrorism, war (or similar),
fires, flood, earthquakes, explosions, and other acts of
God.
19. Survival and
Severability
Any obligations which
expressly or by their nature are to continue after termination, cancellation, or
expiration of the Agreement shall survive and remain in effect after such
happening. Each Party acknowledges that the provisions of the Agreement were
negotiated to reflect an informed, voluntary allocation between them of all the
risks (both known and unknown) associated with the transactions contemplated
hereunder. All provisions are inserted conditionally on their being valid in
law. In the event that any provision of the Agreement conflicts with the law
under which the Agreement is to be construed or if any such provision is held
invalid or unenforceable by a court with jurisdiction over the Parties to the
Agreement, then (i) such provision will be restated to reflect as nearly as
possible the original intentions of the Parties in accordance with applicable
law; and (ii) the remaining terms, provisions, covenants, and restrictions of
the Agreement will remain in full force and effect.
20. Remedies and
Waiver
Except as otherwise
specified, the rights and remedies granted to a party under this Agreement are
cumulative and in addition to, not in lieu of, any other rights and remedies
which the party may possess at law or in equity. Failure of either party to
require strict performance by the other party of any provision shall not affect
the first party’s right to require strict performance thereafter. Waiver by
either party of a breach of any provision shall not waive either the provision
itself or any subsequent breach.
