INDEMNIFICATION. ADVERTISER REPRESENTS THAT ADVERTISER’S CONTENT, INCLUDING ANY THIRD PARTY CONTENT THAT ADVERTISER DISPLAYS OR LINKS TO (HEREINAFTER, “CONTENT”), SHALL NOT GIVE RISE TO A CLAIM BY A THIRD PARTY OR GOVERNMENT REGULATORY AUTHORITY FOR FRAUD, MISREPRESENTATION, DEFAMATION, TRADE DISPARAGEMENT, INVASION OF PRIVACY, VIOLATION OF ANY LAW OR REGULATION OR INFRINGEMENT OF ANY COPYRIGHT, PATENT, TRADEMARK OR TRADE NAME (“THIRD PARTY CLAIMS”). ADVERTISER AGREES TO DEFEND, REIMBURSE, PAY, INDEMNIFY AND HOLD PUBLISHER AND ITS AFFILIATES, SUBSIDIARIES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, MEMBERS, EMPLOYEES, CONTRACTORS, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “PUBLISHER PARTIES”) HARMLESS FROM ANY LIABILITY, LOSS, DAMAGES, JUDGMENT OR CLAIM AND ALL COSTS AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES AND COSTS, INCURRED IN CONNECTION WITH ANY ACTION, SUIT, CLAIM OR PROCEEDING IN WHATEVER NATURE THREATENED OR BROUGHT AGAINST PUBLISHER PARTIES ARISING FROM ANY CONTENT.
DISCLAIMER. ADVERTISER AGREES AND ACKNOWLEDGES THAT THE PUBLISHER PARTIES HAVE NOT MADE ANY REPRESENTATIONS OR GUARANTEES REGARDING THE EXPECTED BENEFITS, PROFITABILITY OR EFFECTIVENESS OF THE DIGITAL SERVICES, NOR CAN IT DO SO. THE DIGITAL SERVICES ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. THE PUBLISHER PARTIES DISCLAIM ALL WARRANTIES WHETHER WRITTEN OR ORAL, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. THE PUBLISHER PARTIES DO NOT WARRANT, REPRESENT OR GUARANTEE THAT THE DIGITAL SERVICES WILL BE AVAILABLE, UNINTERRUPTED, ERROR-FREE OR SECURE. THE PUBLISHER PARTIES HAVE NO CONTROL OVER THIRD PARTIES, INCLUDING SEARCH ENGINE RANKING COMPANIES, SOCIAL MEDIA OUTLETS, BRAND REPUTATION OR PUBLIC RELATIONS OUTCOMES AND FULLY DISCLAIM ALL LIABILITY FOR ANY ACTIONS TAKEN BY ANY THIRD PARTIES.
LIMITED LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT: (A) NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE TO THE OTHER FOR ANY LOST REVENUE, LOST BUSINESS, LOST PROFITS OR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATED IN ANY WAY TO THIS AGREEMENT EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EXCEPT FOR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE NOR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER RELATING TO THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE AMOUNT PAID OR DUE TO PUBLISHER HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION.
Either Party may cancel this Agreement for cause upon failure of the other Party to observe or perform any of its duties or obligations pursuant to this Agreement provided that written notice is provided to the breaching Party by the other Party describing the default in detail, with such termination becoming effective thirty (30) days after notice has been given to the breaching Party if default is not cured by the breaching Party. A Party also has the right to terminate this Agreement if the other Party is adjudicated bankrupt and becomes insolvent or admits in writing its inability to pay its debts as they mature; or if the other party makes an assignment for the benefit of its creditors or applies for or consents to the appointment of a trustee or receiver; or any proceedings are instituted by or against the other Party in respect of any bankruptcy, dissolution, reorganization of creditors or insolvency or other proceeding for the relief of the debtor and such proceedings are not dismissed within thirty (30) days after they have been instituted.
Advertiser agrees that during the Term of this Agreement and for a period of one (1) year after the expiration or termination of the Agreement, Advertiser will not, except with prior written approval of the Publisher, directly or indirectly, individually or as part of or on behalf of any other person, company, employer or other entity, hire or attempt to solicit for hire any persons who have been or are employed by the Publisher or its affiliates.
Upon termination of the Agreement all pre-paid services with an outstanding balance will be executed to completion as defined by EM360Digital Statement of Work and Account Manager plan. Content, assets, and account access transition will be determined based upon the services delivered and Agreement term completion status per the following:
Organic Services: All content and content linking created by Publisher and residing on the Advertiser’s website are considered owned by the Advertiser if all Organic Services are paid in full. All content and content linking created for the Advertiser residing on non-Advertiser websites will no longer be actively managed and the content will expire based upon the policy, process, and procedure of each website. Standard services such as Google Analytics, Google Webmaster Tools, etc. utilized to manage organic deliveries will have administrative access transitioned to the Advertiser.
Social Services: All content created by Publisher and posted on the Advertiser’s social pages are considered owned by the Advertiser if all Social Services are paid in full. Standard social services such as Facebook, Twitter, Google Plus, etc. utilized to manage social deliveries will have administrative access transitioned back to Advertiser.
Web Services: All content and content linking created by Publisher and residing on the Advertiser’s website are considered owned by the Advertiser if all Web Services are paid in full, and the Initial Term of the Agreement has been met including Web Hosting and Maintenance requirements. The Advertiser web site(s) hosted and maintained by Publisher requires Web Hosting or Web Maintenance services to keep the web site active. If there is no agreement for these Services and ownership terms have been met, the Publisher upon request from Advertiser will provide Advertiser with an electronic copy of the content created by Publisher.
Paid Services: All advertising content created by Publisher and posted for the Advertiser is considered owned by the Advertiser if all Paid Services are paid in full. Campaigns can not be transitioned, but the data and configuration can be transitioned to the Advertiser upon request by Advertiser.
If this Agreement is signed by an advertising agent for Advertiser, said agency represents and warrants that it is authorized to sign this Agreement on behalf of its client. It is further understood and agreed that agency is jointly and severally liable for Advertiser’s obligations, including payment. Terms last updated November 4th, 2015.