These Lenco Media Inc. Publisher Terms & Conditions (the "Terms and Conditions") together with any and all Insertion Order Agreement(s) (an "IO") and all Lenco policies and guidelines in effect from time to time (the "Lenco Policies" and collectively with the Terms and Conditions and IOs, the "Agreement") entered into between Lenco Media Inc. ("Lenco") and Publisher (as defined below) shall govern Publisher's participation in the Lenco Media Inc. advertising network (the "Lenco Media Network"). By participating in the Lenco Media Network, Publisher agrees to be bound by these Terms and Conditions and all Lenco Policies in effect from time to time.
1. Registration and Participation in the Lenco Media Network
1.1 Registration. The term "Publisher," shall refer to any individual or entity who accepts these Terms and Conditions and the Lenco Policies by submitting the required information on the Publisher sign up page located at http://admaximizer.com/publisherSignUp.php (the "Publisher Application"), and clicking on the "Sign Up" button. To use (or continue to use) the Lenco Media Network as a Publisher, Publisher must provide Lenco with truthful, accurate and complete information when completing the Publisher Application. If any such information changes, Publisher must immediately update its registration information.
1.2 Verification. Lenco has the right to confirm or otherwise verify or check, in its sole determination, the truth and accuracy of any registration information at any time. Please note that verification of Publisher's registration information, specifically, Publishers' name, address and tax identification number, against a third party database may be considered under certain laws to constitute a "credit check." Notwithstanding the foregoing, Publisher's participation in the Lenco Media Network as a Publisher does not depend on Publisher's credit worthiness or financial stability. Lenco is not making, as part of the registration process or otherwise, any type of inquiry to any third party regarding any individual's credit history and personal financial information, without first obtaining such individual's express prior authorization to do so. Please be advised that if any information is determined in good faith by Lenco to be misleading, inaccurate or untruthful, Lenco may (a) restrict, deny or terminate Publisher's account, (b) restrict, deny or terminate Publisher's access and use of, and/or any benefits derived from Publisher's participation in the Lenco Media Network and/or (c) withhold payment of any Commissions and/or other fees that may be or become due or payable to Publisher and may assess charges against such amounts for Lenco's activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
1.3 Participation in the Lenco Media Network. The Lenco Media Network enables Publishers to apply for and, upon approval by Lenco, have an opportunity to earn Commissions (as herein defined) through participation in various advertising campaigns ("Programs") offered by Lenco or its third party advertisers ("Advertisers") in accordance with the Agreement. If Publisher is an individual, he or she must be 18 years or older to participate in the Lenco Media Network. Membership in the Lenco Media Network is subject to prior approval of Lenco. Lenco reserves the right to refuse service to any new or existing Publisher for any reason, in its sole discretion. Approval of membership in the Lenco Media Network is limited only to the specific root URLs (the "Publisher Websites") for which Publisher has applied for approval by Lenco. Lenco reserves the right, in its sole discretion and without liability to Lenco, to reject, omit or exclude any Publisher or Publisher Website for any reason at any time, with or without notice to the Publisher and regardless of whether such Publisher or Publisher Website was previously accepted. Lenco may in its sole discretion, refuse to register Publisher and/or terminate Publisher's participation in any Program at any time for any reason.
2. Participation in Advertising Programs.
2.1 Acceptance into Programs. Publisher must apply to individual Programs offered by Lenco and Advertisers on the Lenco Media Network. Publisher's acceptance into an Advertiser's Program is determined by Lenco in its sole discretion. In addition to and without limiting Publisher's obligations under this Agreement, Publisher's participation in specific Programs may require that Publisher enter into separate agreements ("Program Terms") with Lenco or with those Advertisers in whose Programs Publisher participates, as applicable. In such event, the Program Terms govern Publisher's relationship with that Advertiser as applicable, including, without limitation, Publisher's use of the Creatives (defined below) associated with that Program, the tracked activities sought, the compensation that might become payable and any limitations or restrictions that may apply to Publisher's promotion of such Advertiser or the Creatives. Lenco has no liability or responsibility to review, endorse, police or enforce any Advertiser Programs.
2.2 Creatives. Lenco posts offers and associated creatives ("Creatives") on Lenco's Website located at www.admaximizer.com (the "Site") in connection with the Programs. Approved Publishers shall be permitted to download the Creatives and/or Lenco will email Publishers the Creatives for publication on Publisher's Website, in Publisher approved newsletters and in Publisher's other approved marketing channels. If Publisher is accepted into a Program, Publisher agrees to place that Program's Creatives on the Publisher Websites and/or other marketing channels, in accordance with this Agreement and the accepted Program Terms, if any. Lenco or the applicable Advertiser, may, in its sole discretion, change a Program at any time, upon prior notice to Publisher, unless otherwise specified the Program Terms. Similarly, Publisher may cease participation in a previously accepted Program at any time, unless otherwise specified in the Program Terms.
2.3 Tracking and Reporting. Lenco is responsible for displaying and administrating all active Programs and tracking associated Commissions and Payable Actions. Program data compiled by Lenco including, but not limited to, numbers and calculations regarding Payable Actions and associated Commissions ("Program Data"), will be calculated by Lenco through the use of industry standard tracking technology and shall be final and binding on Publisher. Any questions regarding the Program Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Program Data will be deemed to be accurate and accepted by Publisher. Publisher understands and agrees that on occasion the Lenco Media Network may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of Lenco or which are not reasonably foreseeable by Lenco including, but not limited to, 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. Publisher acknowledges and agrees that Lenco has no control over the availability of the Lenco Media Network on a continuous or uninterrupted basis. Lenco's failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
3. License. During the Term and subject to Publisher's compliance with this Agreement, Lenco grants to Publisher a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use and display the Creatives, and any and all associated trademarks, service marks, tradenames and/or copyrighted material that Lenco provides to Publisher through the Lenco Media Network, on the Publisher Websites and in other Publisher marketing channels approved by Lenco, for the limited purposes of promoting the Programs to end users. Publisher may not remove or alter any copyright or trademark notices. The use, copying, redistribution and publication by Publisher of any part of the Lenco Media Network, Programs, Creatives and/or Site, other than as expressly permitted hereunder, is strictly prohibited. Publisher does not acquire any ownership rights to the Lenco Media Network, Programs, Creatives and/or Site. No part of the Site may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. Publisher may not (a) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for any unauthorized purposes the Lenco Media Network or access thereto or (b) modify, prepare derivative work of, translate, reverse engineer, reverse compile, disassemble the Lenco Media Network or any portion thereof, or attempt to do any of the foregoing. Except to the extent set forth herein, Lenco does not grant to Publisher any other license, express or implied, to Lenco's intellectual property rights and (b) nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant either party any right, title or interest, implied or otherwise, in or to the intellectual property rights of the other party. Lenco expressly reserves all intellectual property rights not expressly granted hereunder.
4. Publisher Marketing Channels. The Creatives may only be displayed on Publisher Websites, Publisher newsletters and other marketing channels that have been reviewed and approved by Lenco in its sole discretion. Lenco reserves the right to withhold, refuse or withdraw approval of any Websites, newsletters, email distribution lists and/or other marketing channels for any reason in Lenco's sole discretion. Notwithstanding the foregoing, Lenco's polices, specifications and/or recommendations with respect to any Websites, newsletters, email distribution lists and/or marketing channels used by Publisher should not be construed as legal advice, or as sufficient guidelines to ensure that such Websites, newsletters, email distribution lists and/or marketing channels company with applicable law. Publisher represents and warrants that its Websites, newsletters and other marketing channels: (a) will be content-based and not merely a list of links or advertisements, as determined by Lenco in its sole discretion, (b) will be written in English and contain only English language content or other languages as specifically approved in writing by Lenco; (c) will have a top-level domain name; (d) will not offer incentives to entice clicks on ads, including, but not limited to, the awarding of cash, points, prizes, free gifts, lottery entries and contest entries, (e) will be fully functional at all levels and have no "under construction" sites or sections, or parked pages, (f) will not use any proxies, (g) will not use any call centers without prior written authorization from Lenco, (h) will not violate the guidelines of any search engines, (i) will not redirect traffic to other Websites other than those Websites specified by an Advertiser; and (j) will not spawn process pop-ups and exit pop-ups.
5. Privacy Policy. Publisher represents and warrants that Publisher's Website will feature, at a minimum, a privacy policy ("Privacy Policy") linked conspicuously from such Publisher's homepage, with a link that contains explicit language indicating its presence. Such Privacy Policy shall, in addition to the disclosures about Publisher's privacy practices, identify the collection and use of any information Publisher collects, provides or may provide to Lenco and to any Advertiser or other websites or persons with which Publisher has any other arrangement relating thereto. Publisher is obligated to fully comply with the privacy policy posted on the Publisher Website(s) at all times.
6. Use & Display of Creatives. Publisher will only run the approved Creatives in connection with its participation in the Lenco Media Network and will not create its own banners or advertising text, unless expressly approved in writing by Lenco. Publisher shall not alter, modify or otherwise change a Creative, or any Creative-related feature, in any manner without Lenco's prior written consent. Publisher may not place Creatives into Publisher's framed environment unless approved in writing by Lenco. Publisher must present the Creatives in a professional and non-disparaging manner and shall not place the Creatives within misleading information or information that may generate confusion regarding the terms of the offer or advertisement. Violation of the provisions set forth in this Section 6 will result in the forfeiture of any and all Commissions otherwise due and payable to Publisher. Publisher agrees that it will not spam or send unsolicited email mentioning or promoting the Publisher or the Programs. Publisher will not mislead people to make it seem that they are signing up for an offer that is offered by Publisher. Site integration tags and tracking pixels ("Tags"") included in the Creatives or otherwise incorporated may not be altered under any circumstances. Altering, removing or disabling Tags may jeopardize Publisher's ability to be paid Commissions and shall constitute grounds for immediate termination of Publisher's account, with or without notice. Publisher shall not run any deactivated Creatives after the Advertiser has posted new Creatives to run in lieu of such deactivated Creatives for the applicable Program. Publisher must comply, immediately, with any and all requests by Lenco to modify, alter, remove or otherwise change the positioning, placement, frequency and other editorial decisions related to the Creatives.
7. Prohibited Content. Publisher represents and warrants that the content of Publisher's Website(s) or other marketing channels does not promote, advocate, facilitate or otherwise include any of the following: (a) hate speech or material that discriminates on the basis of race, ethnicity, religion, gender, age, disability, sexual orientation, religion or nationality, (b) firearms, bombs and other weapons or how-to guides for any of the above, (c) illegal activities, including, but not limited to drug use and online gambling, (d) pornography, graphic sexual depictions or adult services (e.g., phone sex or escort services), (e) indecent, obscene or highly explosive subject matter, (f) material that violates state, federal or local law, (g) material that is inappropriate or harmful to children, (h) material that infringes on any third-party intellectual property rights, (i) investment, money-making opportunities or advice not permitted as under law, (j) material that defames, abuses, is libelous, is tortuous or threatens physical harm to others, (k) material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person, (l) material that impersonates any person or entity, (m) any indication that any statements Publisher makes are endorsed by Lenco and/or an Advertiser, without Lenco's and/or Advertiser's specific prior written consent, (n) promotion of terrorism or terrorist-related activities, sedition or similar activities, (o) software pirating (e.g., warez, hotline), (p) hacking or phreaking, (q) any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (r) any software, product or service that is illegal or that violates the rights of a third-party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. "spamware"), services that send unsolicited advertisements, programs designed to initiate "denial of service" attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet, (s) any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users, (t) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic; (u) gambling, contests, lotteries, raffles, or sweepstakes, (v) any material that violates CAN-SPAM or any similar state law or (w) any illegal activity whatsoever (including any violations of applicable U.S. state or federal law or regulation, or the laws of any other jurisdiction in which Publisher operates). Publisher represents and warrants that all content, products, and services on its Website(s) are legal to distribute and Publisher owns or has the legal right to use any and all copyrighted material contained therein.
8. Sub-Publishers. Publisher may desire to use business partners and/or associates to fulfill the obligations or exercise the rights under a particular Program. For the purposes of this Section 8, any of Publisher's business partners or associates that participate in or perform any activities on behalf of Publisher under the Agreement shall be considered to be a "Sub-Publisher." Lenco reserves the right to review and approve or reject any and all Sub-Publishers and may revoke a prior approval of any Sub-Publisher at any time and for any reason. Brokering a Program to a Sub-Publisher without the prior written consent of Lenco Media is reason for termination and grounds for non-payment. Sub-Publishers must meet the same criteria for approval as the Publisher as set forth in the Agreement and must comply with all the terms and conditions of this Agreement and the applicable Program Terms. Acceptance of a Sub-Publisher's participation in a particular Program is subject to Advertiser's or Lenco's acceptance (as applicable) of such Sub-Publisher. Publisher shall indemnify Lenco for any and all actions of any of its Sub-Publishers, including the payment of legal fees and costs if necessary. Further, Lenco may, at its sole discretion, terminate a Publisher at any time based on the actions of that Publisher's Sub-Publisher(s). Once express approval of a Sub-Publisher has been granted by Lenco, notices to the Publisher shall be deemed notice to that Publisher's approved Sub-Publisher(s). Publisher agrees that Lenco is under no financial or reporting obligation to Sub-Publisher. Lenco further reserves the right to withhold or refuse payment to any Publisher in the event that any of its Sub-Publishers breach the Agreement.
9. E-mail Programs; Suppression Lists. Where use of e-mail marketing is authorized by Lenco, the following terms shall apply. Any and all e-mail based Creatives transmitted, as well as any and all e-mail addresses supplied by Publisher: (a) shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003, as amended ("CAN-SPAM"), any similar state laws and any and all Federal Trade Commission implementing regulations, (b) must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity, and (c) must not result in any consumer fraud, product liability or breach of contract to which Publisher is a party or cause injury to any third party. Publisher shall cause a valid physical postal address for Publisher and/or the applicable Advertiser, as required by applicable law, to appear in each e-mail Creative, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). Lenco reserves the right to add such address(es) should Publisher fail to include same, but Lenco is in no way responsible for including such address(es) where Publisher fails to do so. Lenco Media provides via FTP or login, a suppression list, generated from e-mail Programs transmitted by and/or through the Lenco Media Network for Publisher's use in connection with applicable Programs. It is Publisher's responsibility to download and use this list every three (3) days. The suppression list and login provided by Lenco are deemed to be Confidential Information of Lenco, as defined herein. Suppression lists may not be used by Publisher for any purpose other than to comply with applicable laws regulating e-mail transmissions. Publisher agrees to process any unsubscribe requests within five (5) days of being posted on the FTP Site.
10. Publisher E-mail Lists. All Publisher e-mails sent under the Agreement shall be delivered to addresses on e-mail lists owned or managed solely by Publisher ("Publisher E-mail Lists"). Brokering third-party deals to deliver Creatives without disclosing such to Lenco is strictly prohibited and grounds for immediate termination, as well as other legal remedies. Publisher is required and agrees to maintain at all times during the term of the Agreement, and for a period of three years thereafter, complete and accurate subscriber sign-up/registration data for every subscriber to Publisher's E-mail List(s). Publisher agrees that, within twenty-four (24) hours of Lenco's request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Publisher sends a Publisher E-mail to: (a) subscriber email address used to sign-up/register for Publisher's E-mail List; (b) subscriber's IP address; (c) date and time of subscriber's sign-up/registration for Publisher's E-mail List; and (d) location of subscriber's sign-up/registration. Publisher agrees to maintain records of consumer data collected in connection with any e-mail Programs for at least three years from the time such e-mails are sent.
11. Customer Information; Non-Disclosure. Any and all information submitted by end-user customers ("Customer Information") in connection with a Program shall be considered proprietary to and owned by Lenco. Such Customer Information is Confidential Information (as that term is defined below) of Lenco and may not be utilized or otherwise disclosed by Publisher. In addition, Publisher acknowledges that all non-public information, data and reports made available by Publisher hereunder or otherwise as part of the Lenco Media Network is proprietary to and owned by Lenco. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information of Lenco in any manner. These non-disclosure obligations shall survive termination or expiration of the Agreement.
12. Payment.
12.1 Payable Actions. The amount and terms under which Publisher will earn payment ("Commissions") for certain transactions ("Payable Actions") will be specified in the IO for the applicable Program or on the applicable page on the Site that sets forth the details for a particular Program when Publisher registers to participate in such Program. Payable Actions include, but are not limited to, clicks, click-throughs, sales, registrations, impressions and leads.
12.2 Payment Terms. Subject to the conditions set forth in this Section 12, Commissions will be paid to Publisher 45 days after Lenco's receipt of an approved invoice for all valid Payable Actions from Publisher. Publisher acknowledges, understands and agrees that payment for Commissions will be owed to Publisher from the applicable Advertiser, and that corresponding payments shall be made by Lenco to Publisher out of the funds actually collected by Lenco from the applicable Advertiser. Lenco shall have no payment obligation to Publisher where Advertiser has not remitted sufficient payments to cover the Commissions otherwise due and owing Publisher. Instead, Publisher shall have the right to pursue any and all legal remedies directly against any Advertiser that has not made funds available to pay sums due and owing to Publisher for Commissions earned in connection with a particular Program. Lenco will provide reasonable assistance to Publisher in the event that Publisher attempts to collect any amounts owed to Publisher directly from an Advertiser. Delinquent Advertiser payments received by Lenco will be credited to the Publisher, in the month that they are received. Notwithstanding anything herein to the contrary, no Commission payments will be issued for any amounts otherwise due Publisher that total less than one hundred dollars (US $100); provided, however, Publisher will be entitled to receive Commission payments once such payments exceed one hundred dollars (US $100). All Publisher accounts will be paid in US dollars ($US). Every Publisher account must have a unique, valid taxpayer identification number (TIN), valid social security number or other applicable unique government identification. All payments hereunder shall be exclusive of any applicable taxes. Publisher shall be responsible for all applicable taxes.
12.3 Chargebacks. Pursuant to the Program Terms of a certain Program, Lenco may debit from the Commissions otherwise due and owing to Publisher an amount equal to the Commissions previously credited to Publisher's account in accordance with such Program Terms, including, without limitation, where: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (c) there are actions that do not comply fully with the terms of the Agreement, including where the applicable non-complying action is not the result of Publisher's action, omission and/or failure to comply with the terms and conditions of the Agreement; (d) there is non-receipt of payment from, or refund of payment to, the Advertiser; or (e) there is any failure on the part of Publisher to comply with the Agreement (collectively referred to as a "Chargeback"). An Advertiser may request that the payment of a Commission be postponed for one (1) payment cycle where: (i) Advertiser is verifying a lead (for Programs in which lead generation is a component of the Payable Actions) or (ii) Advertiser has a product return policy that allows the underlying purchaser to return the product. The number or amount of Payable Actions, credits for payments and debits for Chargebacks, as calculated by Lenco, shall be final and binding on Publisher.
12.4 Offset. Lenco may offset any outstanding payables it has due to Publisher in the event that Publisher is more than thirty (30) days past due on payment to Lenco under this Agreement.
13. Fraud. Lenco actively monitors traffic for potential fraud. If Lenco suspects that Publisher's account has been used in a fraudulent manner and/or if Publisher has fraudulently generated, reported or inflated leads or clicks by fraudulent traffic generation, Publisher will forfeit the entire Commission otherwise payable to Publisher for all Programs and Publisher's account will be deactivated immediately and with no notice pending further investigation. Lenco reserves sole judgment in determining whether Publisher has engaged in fraudulent activity, and by participating in the Lenco Media Network, Publisher agrees to be bound by any and all such determinations. It is the obligation of Publisher to prove to Lenco that it is not engaged in fraudulent activity by providing all tracking and reporting information as well as any information that Lenco deems reasonably relevant to the determination of whether Publisher has engaged in fraudulent activity within seven days of notice from Lenco. Lenco will hold Publisher's Commission-related payments in "Pending Status" until Publisher has satisfactorily provided evidence that demonstrates to Lenco that Publisher has not engaged in fraudulent activity. If Publisher is unable to provide Lenco with satisfactory evidence that Publisher has not engaged in fraudulent activity within seven (7) days of Publisher's Commissions being placed in "Pending Status," then Lenco reserves the right to terminate Publisher's account and cancel payment on the applicable Commissions, in its sole discretion and without any further obligations to Publisher and Publisher shall promptly remit any and all Commissions previously paid to Publisher to Lenco in connection with the Programs. Lenco may monitor accounts for improper activities, including, without limitation, accounts that (a) have click-through rates that are much higher than industry averages, where solid justification is not evident, (b) have click only programs that generate clicks without any indication as to the site the traffic was generated from or any evidence of its ability to sustain such traffic reported, (c) have shown fraudulent leads as determined by Advertisers and/or Lenco, (d) use fake redirects, automated software, and/or fraud to generate clicks or leads from our programs or (e) use or engage in any other "black-hat" methods. Fraudulent activity may be reported to the proper authorities and prosecuted to the fullest extent of the law.
14. Term and Termination. The Agreement shall commence upon Lenco's acceptance of the Publisher Application and shall continue until terminated as set forth herein (the "Term"). This Agreement may be terminated (a) by Lenco at anytime by providing written notice (including via email) thereof to Publisher, such termination to be effective immediately upon sending notice or (b) by Publisher upon three (3) business days' prior written notice. In addition, and without limiting any of the foregoing, Lenco reserves the right, in its sole and absolute discretion to terminate a Program and/or remove any Creatives at any time with or without notice to Publisher. Upon termination, Lenco may terminate access to the Lenco Media Network and any interfaces used to access the Lenco Media Network without notice. Additionally, upon termination, Publisher will remove all code, creative, or intellectual property made available to Publisher in connection with this Agreement Subject to Section 13, all legitimate moneys due to Publisher will be paid during the next billing cycle following termination. Upon termination, all representations and warranties will remain in full effect.
15. Confidential Information. Publisher understands that Lenco may disclose information of a confidential nature including, without limitation, the terms and conditions of this Agreement, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms, business and marketing plans, the logins and passwords provided to Publisher under this Agreement or other materials that are (a) clearly and conspicuously marked as "confidential" or with a similar designation or (b) are disclosed in a manner in which Lenco reasonably communicated, or Publisher should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation "confidential" or any similar designation is used ("Confidential Information"). Publisher agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes any Confidential Information of Lenco without the prior written approval of Lenco in each instance. The foregoing obligations shall not extend to any information to the extent that the Publisher can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of Publisher, a part of the public domain by publication or otherwise, (ii) was already properly and lawfully in the Publisher's possession at the time it was received by Publisher from any obligation of confidentiality, (iii) was or is lawfully received by Publisher from a third party who was under no obligation of confidentiality to Lenco with respect thereto, or (iv) is independently developed by Publisher or its independent contractors who did not have access to Lenco's Confidential Information. In the event that Publisher is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, Publisher shall promptly notify Lenco in order to allow Lenco to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of this Agreement, upon the request of Lenco, Publisher agrees to return to Lenco all of Lenco's Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk or other form of documentation, or to certify to Lenco in writing that all such material has been destroyed. The parties acknowledge and agree that the unauthorized disclosure of Confidential Information shall cause irreparable harm and significant injury to Lenco. Accordingly, and in addition to any other remedies available at law or in equity, Lenco shall be entitled to seek equitable relief including, without limitation, an immediate injunction for breach of this Section 15.
16. Publisher Representations and Warranties. Publisher represents, warrants and covenants to Lenco Media that (i) Publisher has full power and authority and has taken all action necessary to execute and deliver this Agreement and to fulfill its obligations hereunder; (ii) Publisher's performance under this Agreement does not and shall not violate its certificate of incorporation, by laws or other organizational documents or any other agreement to which it is a party or by which it is bound; (iii) this Agreement has been duly executed and delivered by Publisher and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the respective terms hereof (except to the extent that enforceability may be limited by bankruptcy, insolvency or other similar laws of general applicability affecting enforcement of creditors' rights generally); (iv) all approvals, authorizations or other actions by or filings with any governmental authority or other person or entity necessary for the validity or enforceability of Publisher's obligations under this Agreement have been obtained; (v) any and all information provided by Publisher as part of the registration process or otherwise shall be truthful, accurate and complete, irrespective of any independent verification or other determination made by Lenco; (vi) Publisher will comply with all of the terms and conditions of this Agreement, as amended from time to time; (vii) Lenco is hereby authorized by Publisher to perform all the services described hereunder with respect to Publisher and the Publisher Websites; (viii) upon request by Lenco, Publisher shall promptly provide a written statement in form acceptable to Lenco confirming Lenco's authority hereunder and (ix) Publisher shall not upload, post, email, transmit or otherwise make available any content, material, data, work, designation, trade or service mark, tradename, link, advertising or services that actually or potentially (a) violates any applicable law or regulation, including without limitation, false advertising or unfair competition under the law of any jurisdiction, (b) infringes or misappropriates any proprietary, intellectual property, contract or tort right of any person or (c) to a reasonable person, may be abusive, obscene, pornographic, defamatory, invasive of privacy, harassing, grossly offensive, vulgar, threatening, malicious, otherwise objectionable or in any way derogatory about Lenco or any other party.
17. DISCLAIMER. THE SERVICES HEREUNDER, THE DATA , THE Lenco MEDIA NETWORK AND ALL OTHER Lenco WEBSITES, SYSTEMS AND CODE (COLLECTIVELY, THE "Lenco MATERIAL") AND ALL CREATIVES, THIRD PARTY WEBSITES, APPLICATIONS AND/OR EMAILS (COLLECTIVELY, THE "THIRD PARTY PRODUCTS") ARE PROVIDED OR MADE AVAILABLE BY Lenco ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND Lenco EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PUBLISHER EXPRESSLY AGREES THAT PUBLISHER'S USE OF THE Lenco MATERIALS AND THIRD PARTY PRODUCTS, OR ANY PARTY THEREOF, IS AT PUBLISHER'S SOLE RISK.
SPECIFICALLY, BUT WITHOUT LIMITING THE FOREGOING, Lenco MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY OF THE FOLLOWING (AND Lenco DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, PENALTY OR DAMAGE OF ANY KIND WHATSOEVER RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO THE FOLLOWING): (i) THAT THE Lenco MATERIALS OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF, SHALL BE FREE OF ERRORS OR OMISSIONS, INCLUDING, BUT NOT LIMITED TO, TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS; (ii) THE AVAILABILITY, ACCURACY OR UNINTERRUPTED USE OF THE Lenco MATERIALS OR THE THIRD PARTY PRODUCTS OR ANY PORTION THEREOF, ANY CONTENT THEREON OR ANY INTERFACE THERETO; (iii) THAT THE Lenco MATERIALS OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF, ARE FREE OF DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS; (iv) ANY THIRD PARTY WEBSITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH HYPERLINKS CONTAINED IN ANY Lenco WEBSITE OR CREATIVE; (v) PUBLISHER'S USE OF THE ANY Lenco MATERIALS OR THIRD PARTY PRODUCTS; (vi) ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH Lenco, THIRD PARTY PRODUCTS, Lenco SYSTEMS OR Lenco WEBSITES OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF, ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THEREFROM, OR WEBSITES LINKED THERETO OR THEREFROM; OR (vii) THE SUCCESS OR RESULTS, ECONOMIC OR OTHERWISE, THAT MAY BE OBTAINED BY USE OF, OR OTHERWISE AVAILABLE FROM, THE Lenco MATERIALS OR THE THIRD PARTY PRODUCTS, OR ANY PART THEREOF.
18. LIMITATIONS OF LIABILITY.
18.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Lenco WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF Lenco HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Lenco'S LIABILITY FOR DIRECT DAMAGES SHALL BE LIMITED TO THE AMOUNTS RECEIVED HEREUNDER DURING THE 6 MONTH PERIOD AFTER THE TIME THAT THE CAUSE OF ACTION AROSE. IN LIEU OF REFUND, Lenco SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF "MAKE-GOOD" ADVERTISING, IF THE "MAKE-GOOD" ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED. PUBLISHER IS AWARE THAT Lenco MAY USE THIRD PARTY COMPANIES TO ASSIST WITH THE EMAIL DEPLOYMENT PROCESS. IN NO EVENT WILL Lenco BE LIABLE FOR THE ACTIONS OF SUCH THIRD PARTY COMPANIES.
19. Indemnification. Publisher shall indemnify, hold harmless and defend Lenco and its respective officers, directors, members, shareholders, employees, contractors, representatives, agents, successors and assigns (collectively, the "Lenco Parties") from and against any and all claims, liabilities, losses, damages, expenses and costs (including, without limitation, reasonable attorneys' fees) (collectively, "Claims") arising out of or relating to (i) Publisher's or its Sub-Publisher's breach of any of its representations, warranties and covenants set forth in this Agreement; (ii) Publisher's or its Sub-Publisher's improper use of the Site, a Program, Lenco Media Network and/or any Creatives; and (iii) Publisher's marketing practices or the content on Publisher's Website, e-mails, or other marketing channels, (iv) Publisher's violation of any and all state and federal laws, (v) any content, good or services offered, sold or otherwise made available by Publisher on Publisher's Website or other marketing channels, (vi) Publisher's failure to pay taxes in connection with any payment made to Publisher in connection with this Agreement, or (vii) Publisher's or its Sub-Publishers breach of any of the terms of this Agreement and any Program Terms. Lenco reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Publisher. If Lenco does assume the defense of such a matter, Publisher will reasonably cooperate with Lenco in such defense. Publisher will not enter into any settlement or compromise of any claim, which settlement or compromise would result in any liability to any Lenco Party, without Lenco's prior written consent, which will not unreasonably be withheld or delayed.
20. Miscellaneous.
20.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to any conflict of law principles. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts situated in the city of Santa Barbara, California in connection with any action arising between the parties.
20.2 Attorney Fees.. In any legal proceeding, Lenco is entitled to its reasonable attorney and court fees necessary to enforce this Agreement.
20.3 Entire Agreement. This Agreement, together with any applicable IOs, represent the entire agreement between the parties with respect to the subject matter hereof and will supersede all prior agreements and communications of the parties, oral or written.
20.4 Amendment and Waiver. Lenco reserves the right to change and/or modify the terms and conditions of this Agreement and/or the terms and conditions of any Program Terms from time to time by posting an update to these Terms and Conditions and/or any Program Terms on www.admaximizer.com. Any such modified Terms and Conditions and/or Program Terms will be effective as of the "Revision Date" referenced in such updated Terms and Conditions and/or Program Terms. Publisher agrees to review these Terms and Conditions and the Program Terms on a regular basis to familiarize itself with any such modifications. By continuing to participate in the Lenco Media Network after a modification, Publisher thereby agrees to be bound by these Terms and Conditions and/or the applicable Program Terms as amended. Except as otherwise provided herein, no amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default.
20.5 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
20.6 Assignment. Lenco may assign this Agreement in its sole discretion, including, without limitation in connection with a merger, acquisition, a sale of assets or by operation of law. Publisher may not assign, transfer or delegate any of its rights under this Agreement without the prior written consent of Lenco, which may be withheld in its sole discretion, and any attempts to do so shall be null and void. Any such attempt to assign this Agreement in violation of this Section may result in Lenco terminating this Agreement and/or Publisher's participation in the Lenco Media Network, without any liability to Lenco.
20.7 Non-circumvention. Publisher agrees not to circumvent Lenco's relationship with any Advertisers, or otherwise solicit or induce, directly or indirectly, any Advertiser that is in the Lenco Media Network, and/or that otherwise has a business relationship with Lenco, for purposes of obtaining advertising, marketing or promotional services similar to those offered by Lenco during the term of this Agreement. Publisher further agrees not to reverse engineer or trace traffic as a means to directly solicit Advertisers, or others away from or induce them to reduce the amount of business that they do with Lenco. In the event of a breach of this covenant, without limiting Lenco's remedies, Publisher shall pay to Lenco an amount equal to the fees that would be charged by Lenco under this Agreement had the advertising program been run through Lenco.
20.8 Notices. All notices, payable checks and other communications permitted hereunder shall be in writing and shall be deemed to have been duly given upon receipt of hand delivery, certified or registered mail, return receipt requested, or telecopy transmission with confirmation of receipt. All notices to Lenco shall be sent to: Lenco Media Inc., Attn: Legal Department, 345 Chapala Street, Santa Barbara, CA 93101 phone: (805) 308-9152, fax: (805) 456-0405. All notices to Publisher shall be sent to the address set forth on the applicable IO or the address provided in the registration process described in Section 1.1.
20.9 Rules of Construction. The titles and headings of sections of and schedules to this Agreement are for convenience of reference only and shall not in any way affect the construction or interpretation of any provision this Agreement. This Agreement has been mutually reviewed and agreed to and shall not be construed against the drafter.
20.10 Counterparts. This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Transmission by telecopy of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.
20.11Force Majeure. No party will be liable for failure to perform or delay in performing any obligation (other than the payment of money) under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other similar cause beyond the control of such party.
20.12Cumulative Remedies; Binding Effect. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law or in equity. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
20.13 No Joint Venture. The relationship between the parties is that of independent contractors. Nothing in this Agreement is intended to or shall be construed to create a joint venture, agency, sales representative or employment relationship between the parties. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party's behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives.
20.14 No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the parties hereto and is not intended to confer any benefit upon any other persons whatsoever. Except for the parties hereto, no other person shall have any right to rely upon this Agreement for any purpose whatsoever. This Agreement may not be assigned to any other third parties without prior written approval by the other party to this Agreement.