last updated: December 22nd, 2011
Medley Advertiser Master Agreement
This Advertising Master Agreement, together with all Insertion Orders (as defined below) (collectively, the "Agreement") constitutes a binding agreement between Medley.com Incorporated, a California corporation ("Medley", "we", "us" or "our"), and the publisher or other person or entity entering into this Agreement ("Publisher", "you" or "your"), and governs our placement of certain advertising with you, as more fully set forth herein.
Medley specializes in the delivery and placement of advertising content on behalf of its customers including, but not limited to, the FFN Entities (as defined below), and desires for Publisher to place certain Advertising Assets on behalf of Medley and the FFN Entities throughout the Publisher Sites in accordance with the terms and conditions of this Agreement.
BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU REPRESENT THAT (A) IF YOU ARE AN INDIVIDUAL, (1) YOU ARE AT LEAST 18 YEARS OLD AND THE AGE OF MAJORITY AND LEGAL CONSENT IN THE JURISDICTION IN WHICH YOU LIVE OR RESIDE; AND (2) YOU HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT; OR (B) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, (1) YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY; AND (2) SUCH COMPANY OR ENTITY HAS AUTHORIZED YOU TO ACCEPT THIS AGREEMENT ON ITS BEHALF.
THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY BE CHANGED AT ANY TIME BY US IN OUR DISCRETION, WITH OR WITHOUT NOTICE. We indicate at the top of the page when this Agreement was last updated. Continuing or maintaining your relationship with us following such changes will be deemed acceptance of them. Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement. Upon our request, you agree to sign a non-electronic version of this Agreement.
- DEFINITIONS. Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
- "Advertising Assets" means banner advertisements, button links, and text hyperlinks used to direct traffic to FFN Sites.
- "FFN Entities" means FriendFinder Networks Inc., a Nevada corporation, and certain of its direct or indirect subsidiaries that operate FFN Sites.
- "FFN Site" means a website owned or controlled by an FFN Entity.
- "Insertion Order" means any invoice, insertion order, or any other document intended to document the terms of a specific order for the placement of Advertising Assets.
- "Publisher Sites" or "Your Sites" means the website(s), service(s) and/or advertising network(s) maintained or controlled by Publisher.
- ADVERTISING SERVICES. Publisher agrees to sell, and Medley agrees to purchase, advertising placement on the Publisher Sites for the purposes of promoting and selling subscriptions, memberships, services and goods on websites owned or operated by one or more of the FFN Entities (the "FFN Services"), all as more fully set forth in the Insertion Order(s). All Insertion Orders are incorporated by reference into this Agreement. In the event of any conflict between the terms and conditions of any Insertion Order and those set forth in this Agreement, (a) the financial terms set forth on the Insertion Order shall govern, and (b) the legal terms set forth in this Agreement shall control, unless the Insertion Order expressly states that it is amending a provision of this Agreement (in which case the Insertion Order shall control).
- LIMITED LICENSE TO USE ADVERTISING ASSETS. Publisher represents and warrants that it owns and/or operates the Publisher Site and desires to place Advertising Assets on the Publisher Site subject to the terms of this Agreement. Medley makes Advertising Assets available to promote the FFN Services of the FFN Sites. Advertising Assets are provided to an individual FFN Site (e.g., banners.adultfriendfinder.com, banners.penthouse.com). Such Advertising Assets may contain logos, trademarks, service marks and/or identifying words for the FFN Entities, FFN Sites and their products and services ("FFN Services"). You are granted a non-exclusive, non-transferable and revocable license to display these Advertising Assets throughout the Publisher Site, subject to the terms and conditions of this Agreement and Medley's policies and procedures. You may not alter, change, add to, or otherwise modify any Advertising Asset provided by us. This Agreement does not authorize the use of any Advertising Assets for any off-line or non-Internet (i.e., print) advertising or in the use of email marketing or other similar solicitations.
- RESPONSIBILITY FOR OPERATION OF PUBLISHER SITES. Publisher will be solely responsible and liable for the development, operation, maintenance and all materials and content appearing on the Publisher Site. Publisher shall operate and maintain the Publisher Site in accordance with all applicable laws, rules and regulations. We reserve the right to monitor the Publisher Site to determine if you are in compliance with this Agreement.
- REPORTING. Within two (2) business days after the commencement date on the applicable Insertion Order, you shall provide confirmation to us either electronically or in writing pursuant to Section 35, stating whether you have commenced delivery of the components of the Insertion Order. You shall deliver or make available to us such reports (and such other information as we may reasonably request) at least weekly, either electronically or in writing. Reports must be broken out by day and summarized and provided in the Insertion Order (e.g., impressions, keywords, pixel activity, time and/or clicks). All information in such reports will be complete and accurate and you agree to immediately notify us if any information in such reports is no longer complete or accurate.
- MAKEGOODS. You shall monitor advertising, and shall notify us if you believe that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for makegoods consistent with the Insertion Order. A makegood will also be required if there is an incorrect link, image, or tag running due to the fault of the Publisher. The makegood will equal the amount of time, impressions, clicks or pixel activity delivered incorrectly.
- OWNERSHIP OF CUSTOMER INFORMATION. Visitors and members of the FFN Sites will be considered customers of the applicable FFN Entities for all purposes, and all FFN Site terms, policies, rules and procedures will govern the customer relationship between the FFN Entities and such customers. As between the parties, the FFN Entities own any information pertaining to any person or customer who accesses any FFN Site.
- NON-EXCLUSIVE LIMITED LICENSE TO USE FFN MARKS. The applicable FFN Entity grants you a non-exclusive, non-transferable, revocable and limited license to use the logos, trade names, trademarks, service marks, and similar identifying material specified by such FFN Entity on the applicable FFN Site or in the Advertising Assets ("FFN Marks") solely for the purpose of advertising the FFN Services through the use of Advertising Assets in accordance with Section 3, subject to and in accordance with the terms of this Agreement. Without limiting the foregoing, you hereby agree:
- to refrain from purchasing, bidding on, or otherwise obtaining or using keywords incorporating or otherwise based upon the FFN Marks on search engines (e.g., google.com, yahoo.com and bing.com);
- not to use or place the FFN Marks on or with any items that are injurious to end-users or their property, including but not limited to, items that could give rise to a claim for a breach of an express or implied warranty or product liability, or which is scandalous, libelous, obscene, an invasion of privacy or otherwise unlawful or tortious;
- to use the FFN Marks exactly in the form provided and in conformance with any trademark usage policies, guidelines and quality standards of the FFN Entities and not to alter, modify or change the FFN Marks in any way;
- to furnish, upon request, at no charge to the FFN Entities, a representative specimen of your use of the FFN Marks;
- if, at any time, your use of the FFN Marks fails to conform to the FFN Entities' trademark usage policies, guidelines or quality standards, to promptly remove the FFN Marks from the Publisher Site;
- not to take any action inconsistent with the FFN Entities' ownership of the FFN Marks;
- not to use the FFN Marks in any manner that is disparaging or that otherwise portrays the FFN Entities in a negative or misleading light;
- not to create a website or web page that uses the FFN Marks in a manner that is likely to be confused (e.g., similar designs, graphics, look and feel) with one or more websites operated by the FFN Entities;
- not to use, register or file an application to register a trademark, service mark, domain name, user name, account name or other proprietary designation incorporating the FFN Marks, or any variation of the FFN Marks, whether they are used alone, in part, or in combination with other words (e.g., "californiafriendfinder") or are based upon typographical errors or misspellings (e.g., "freindfinder"", "Panthouse", etc.) ("Prohibited Designation"); and
- to notify Medley promptly upon becoming aware of any improper use of the FFN Marks and reasonably cooperate with Medley (at Medley's request) in the protection of the FFN Marks.
The license granted to you pursuant to this Section may be revoked at any time for any reason and shall terminate upon expiration or termination of this Agreement.
If you have previously used or registered any Prohibited Designation, (i) upon request, or (ii) if no request has been made, upon expiration or termination of this Agreement, you agree to transfer all of your rights in the Prohibited Designation and the associated goodwill to us within ten (10) days thereafter. In such case, we shall pay you a reasonable fee to cover the expenses necessary to transfer the Prohibited Designation, but in no instance will the amount exceed $100 per domain or $500 for all domains. You hereby grant an irrevocable power of attorney coupled with an interest to all or any of the FFN Entities to take all steps necessary to effectuate the transfer of the Prohibited Designation to the FFN Entities in the event that you fail to comply with the terms of this Section. Without limiting the foregoing, you specifically agree not to use the Prohibited Designations to promote the goods or services of you or any third parties.
- NON-EXCLUSIVE LIMITED LICENSE TO USE YOUR MARKS. You hereby grant the FFN Entities a non-exclusive, transferable, world-wide license to utilize your name(s), titles, logos, and trademarks ("Your Marks") to advertise, market, promote and publicize in any manner the FFN Services, the FFN Sites and our rights hereunder. However, we shall have no obligation to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of Your Marks and/or have all necessary rights and power to grant to us the license to use Your Marks in the manner contemplated herein, and such grant does and will not (a) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (b) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. This license shall terminate immediately following the effective date of termination of this Agreement.
- ACKNOWLEDGEMENT OF FTC-VARIOUS ORDER. You acknowledge that you have received, read, and agree to comply with the "Stipulated Final Order for Permanent Injunction as to Defendant Various, Inc." filed on December 12, 2007 (the "FTC-Various Order") and understand and agree that engaging in acts or practices prohibited by the FTC Order will result in the immediate termination of this Agreement and any and all Insertion Orders and a forfeiture of all monies received by Publisher or owed by the FFN Entities hereunder.
You agree to fully cooperate with our compliance with the FTC-Various Order.
You agree to immediately notify us if you receive any complaints regarding alleged use of sexually explicit advertising of the FFN Services, FFN Sites or FFN Entities.
You agree to fully cooperate in any investigation we choose to perform for compliance under the FTC-Various Order or to determine any violations of this Agreement. You agree to retain for eight (8) years (and immediately provide to us within three (3) business days of our written demand) all copies of historical web pages/URLs and online advertising that contain (or contained), if any, sexually explicit material used to advertise the FFN Services, FFN Sites or FFN Entities.
Download the PDF version of the FTC-Various Order of December 12th, 2007.
- REPRESENTATIONS AND WARRANTIES. You hereby represent and warrant to us that neither you nor the Publisher Sites:
- incur, undertake or make any representation, warranty, covenant or agreement on behalf of Medley or its affiliated entities to or for the benefit of any person or entity;
- contain or promote materials that infringe or violate the copyright or other intellectual property rights of us, our affiliated entities or any third-parties;
- defame, abuse, harass, stalk, threaten or otherwise violate the rights (including, but not limited to, rights of privacy and publicity) of others or otherwise directly or indirectly facilitate such activities;
- contain any materials that depict persons under the age of eighteen (18) years old, or in a manner that suggests they are;
- promote (i) harmful or indecent matter to minors; (ii) violence; or (iii) discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or any other legally prohibited classification;
- use or benefit from unsolicited sexually explicit advertising;
- contain content that is obscene, defamatory, misleading, libelous, hateful or unlawfully threatening, abusive or harassing or likely to cause disparagement to persons appearing on the FFN Sites;
- involve advertising, marketing or business practices that are fraudulent, or misleading, or that promote unfair competition;
- own, controls or uses a URL containing a Prohibited Designation;
- send, transfer or otherwise initiate (i) e-mails in violation of the Can-Spam Act of 2003, as amended (i.e., "spam"), or unsolicited chat messages, e.g., instant messages and group chat rooms; or (ii) any downloadable programs or executables that contain viruses, worms, "Trojan horses" or any other destructive features that violate the rights of third-parties, including but not limited to, redirection to unwanted websites, modification of browser settings, interference with site navigation, and/or accessing data;
- violate, or promote violation of, any law, statute, ordinance, regulation or rule (including, but not limited to, the Federal Trade Commission blogger rules) to which you or the Publisher Sites are subject;
- violate an order, judgment, decree, or the terms of any other agreement, license, permit, document or instrument, or the rules of any licensing body, to which Publisher, its assets or the Publisher Sites are subject or bound, including but not limited to, the FTC-Various Order.
- PROHIBITED ACTIVITIES. Publisher may not advertise on our behalf in any manner that violates, or is otherwise inconsistent with, Sections 10 ("Acknowledgement of FTC-Various Order") or 11 ("Representations and Warranties").
Any use of sexually explicit content to advertise on behalf of the FFN Entities must comply with Sections 10 ("Acknowledgement of FTC-Various Order") and 15 ("Compliance with 18 USC section 2257").
You may not display, or by any other method use, any photos, videos or any other information pertaining to any members of, or any other persons depicted on, any FFN Site.
You are prohibited from advertising, in any manner, the FFN Sites or FFN Services through the use of e-mail marketing or links in e-mail. This provision prohibiting such e-mail marketing goes beyond the prohibition of the use of unsolicited e-mail advertising and prohibits you from sending any e-mail messages advertising FFN Sites or FFN Services even if such e-mail is permission based or double opt-in.
We, in addition to any other remedy we may have, reserve the right to suspend or this Agreement, and take any other appropriate disciplinary actions permitted by law, without notice if you (or someone acting on your behalf) violate this Section.
We fully reserve the right at anytime to refuse to accept traffic from you for any reason or no reason. In addition we fully reserve the right to divert any traffic you send to any FFN Site to any other site and your only remedy would be to stop sending traffic to us or to terminate this Agreement without any monetary compensation owing to you.
- DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, MEDLEY AND THE FFN ENTITIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARISING OUT OF PUBLISHERS' PARTICIPATION IN THE ADVERTISING ACTIVITIES HEREUNDER OR USE OF FFN SITES OR FFN SERVICES. FURTHER, THE FFN ENTITIES EXPRESSLY DISAVOW ANY OBLIGATION TO DEFEND, INDEMNIFY OR HOLD PUBLISHER OR ANY PUBLISHER REPRESENTATIVES OR OWNERS HARMLESS IN CONNECTION WITH ANY LAWSUIT OR OTHER PROCEEDING ARISING OUT OF SUCH PARTICIPATION OR USE. IN ADDITION, WE MAKE NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE FFN SITES OR FFN SERVICES WILL REMAIN UNINTERRUPTED OR ERROR-FREE OR GENERATE ANY INCOME.
- LIMITATION OF LIABILITY. MEDLEY AND THE FFN ENTITIES, THEIR PARENT COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR EXEMPLARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF DATA ARISING IN CONNECTION WITH THIS AGREEMENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, MEDLEY AND THE FFN ENTITIES, THEIR PARENT COMPANIES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DESIGNEES CONTRACTORS, AFFILIATES, SUCCESSORS AND ASSIGNS AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO YOU DURING THE PAST SIX (6) MONTHS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS WHETHER BASED UPON BREACH OF CONTRACT, NEGLIGENCE, TORT, VIOLATION OF 18 USC SECTION 2257 ET SEQ., ERRORS AND OMISSIONS, COPYRIGHT, TRADEMARK, PATENT, OR ANY OTHER CLAIM OR CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.
- COMPLIANCE WITH 18 USC SECTION 2257. At all times, the Publisher Site must comply with 18 USC section 2257. To the extent that we provide you with Advertising Assets that contain a visual depiction of any person that is "sexually explicit" as defined by 18 USC section 2256, your use of such Advertising Assets must also comply with 18 USC section 2257.
- ACCURACY OF DOMAIN REGISTRATION. The domain registration (i.e., "whois") information of the Publisher Site that contain Special Links (the "Domain Information") shall be publically available (i.e., not blocked or redacted by your registrar), and contain current and accurate contact information, e.g., the Publisher's name, address, telephone number, email address, and such other information that would provide any third-party with a reasonable expectation of contacting you during normal business hours. We reserve the right to disclose Domain Information to anyone when it is not publically available, current and/or accurate.
- TERM; TERMINATION. Either party may terminate this Agreement at anytime by providing notice to the other party pursuant to Section 34 ("Notices"). If you terminate this Agreement, or if we terminate as provided in Section 12 ("Prohibited Activities"), then we shall not be obligated to make any further payments other than for services performed through the date of termination. Sections 1, 4, 7, 8, 10, and 12-37 shall survive expiration or termination of this Agreement. Upon termination, any and all licenses provided to you under this Agreement shall immediately cease and you shall immediately stop using, amongst other things, any Advertising Assets and Special Links under this Agreement, and you shall immediately remove all Special Links and any other content using or referencing the FFN Services or FFN Sites from the Publisher Site.
- NO AGENCY; INDEPENDENT CONTRACTORS. Nothing in this Agreement is deemed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf and you are prohibited from holding yourself out as our agent. Publisher shall not take any action or make any statement that contradicts anything in this Section. It is expressly understood and agreed that Publisher and Medley are independent contractors in all manners and respects. Publisher shall not be entitled to any benefits and shall be solely responsible for all taxes, social security taxes, unemployment taxes, workers' compensation insurance premiums and any other taxes or Commissions and other amounts paid to Publisher hereunder.
- CONFIDENTIALITY. Your fees and/or rates, and any software, technology, programming, APIs, specifications, materials, guidelines and documentation, or other information designated "confidential" by any of the FFN Entities shall be kept confidential by Publisher and shall not be disclosed to any third party except as may be required by any court of competent jurisdiction, governmental agency, law, regulation or the rules of any stock exchange. In such event, Publisher shall if permitted give reasonable advance notice to Medley of the disclosure and redact or seek an appropriate protective order to the extent possible before disclosing the confidential information.
- INDEMNIFICATION. You shall defend (or pay our fees ands costs of defense at our sole discretion), indemnify and hold Medley and FFN Entities and their respective successors, affiliated entities, assigns, shareholders, officers, directors, employees and applicable third parties (e.g., licensors, licensees, consultants and contractors) (collectively, the "Indemnified Person(s)") harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) brought against the Indemnified Person(s) and arising out of or related to, your participation in the Publisher Program, operation of the Publisher Site, and/or your breach (or any alleged breach) of any term of this Agreement, including but not limited to, Sections 8 ("Non-Exclusive Limited License to Use FFN Marks") and 11 ("Representations and Warranties").
- INDEPENDENT INVESTIGATION. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, INCLUDING THE PROGRAM RULES AND ANY ACCOMPANYING ADDENDUM, AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) PROVIDE TERMS TO OTHERS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEBSITES THAT ARE SIMILAR TO OR COMPETITIVE WITH THE PUBLISHER SITE OR THE FFN SITES WITHOUT OBLIGATION TO YOU. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. We strongly advise that you review this Agreement with your attorney before you enter into it. You acknowledge and agree that nothing herein and no statement by us or any employee, representative, agent or other person associated with us has in any way prevented or inhibited you in any way from seeking such advice prior to entering into this Agreement. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair, all terms have been fully disclosed in writing, and that you have been given a reasonable chance to seek advice of independent counsel with respect to this Agreement and all transactions associated herewith.
- NON-ASSIGNMENT. You may not resell, assign or transfer any of your rights or obligations under this Agreement without our prior written consent. We may resell, assign or transfer our rights and obligations under this Agreement at any time without restriction and without notice or consent.
- CHOICE OF LAW. This Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws rules or principles.
- VENUE. Publisher hereby consents to exclusive jurisdiction in California and venue in Santa Clara County, California for all arbitration and other proceedings arising out of this Agreement.
- ARBITRATION OF DISPUTES. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN PUBLISHER AND MEDLEY OR ANY OF OUR AFFILIATED ENTITIES OR OURS OR THEIR AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, OR ASSIGNS ARISING FROM OR RELATING TO THIS AGREEMENT, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY HEREOF, OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT (INCLUDING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT SIGNATORIES TO THIS AGREEMENT), SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY JAMS before a retired judge in Santa Clara County, California. In the event such a JAMS proceeding is unavailable for any reason, such disputes shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA before a single retired judge. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. This Section and Section 26 below are subject to the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA), as amended. Any award of the arbitrator shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. The arbitration proceeding will be limited solely to the dispute or controversy between the parties. PUBLISHER ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY WITH RESPECT TO ANY SUCH CLAIM. Nothing in this Section 25 shall be deemed to prohibit Medley from seeking an injunction or other equitable relief in any court of competent jurisdiction to protect or preserve its or its licensors' intellectual property rights or rights in or to confidential information.
- CLASS ACTION WAIVER. IN ANY DISPUTE, NEITHER PUBLISHER NOR ANY OTHER PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST MEDLEY OR OTHER PERSONS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. PUBLISHER ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY SUCH CLAIM.
- REMEDIES ARE CUMULATIVE. All rights, remedies, undertakings, obligations and agreements contained in this Agreement or available at law, in equity or otherwise, shall be cumulative, and none shall be a limitation of any other remedy, right, undertaking, obligation, or agreement.
- AGREEMENT BINDING. This Agreement shall be binding upon the parties and their successors, permitted assigns, heirs, affiliates, directors, shareholders, officers, employees and/or agents.
- FORCE MAJEURE. Neither party shall be held responsible for delay or failure in performance hereunder caused by acts of God (or natural disasters), terrorism, strikes, embargoes, fires, war, or other causes beyond the affected party's reasonable control.
- CONSTRUCTION. The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
- INJUNCTIVE RELIEF. Publisher's sole remedy for breach of any provision of this Agreement shall be an action at law for monetary damages, and in no event shall Publisher be entitled to any injunctive or other equitable relief. Medley may bring an action for injunction or other equitable relief to protect its intellectual property rights or rights in or to confidential information and trade secrets.
- COUNTERPARTS. This Agreement may be executed in counterparts, via any means (including facsimile and e-mail), all of which shall be effective, but when taken together shall comprise one agreement.
- SEVERABILITY. If any provision of this Agreement is held to be unenforceable under applicable law, such provision shall be excluded from this Agreement, and the balance of this Agreement shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its modified terms.
- MERGER. This Agreement and any accompanying materials and addendums represent the entire understanding between the parties with respect to the subject matter hereof and supersede all previous understandings, written, oral or implied. Subject to our right to update and modify the terms and conditions of the Agreement as provided above, this Agreement may only be amended with the written consent of both parties, and no oral waiver or amendment shall be effective under any circumstances.
- NOTICES. Except as explicitly stated otherwise, legal and other notices shall be delivered to Medley.com Incorporated by U.S. mail at 220 Humboldt Court, Sunnyvale, CA 94089 Attn. Legal, or to you at the email address you provided us in the applicable Insertion Order. Email notices to you shall be deemed given twenty-four (24) hours after email is sent, unless Medley is notified that the email address is invalid. Alternatively, Medley may provide notice by certified mail, postage prepaid and return receipt requested to the address is listed in the applicable Insertion Order. In such case, notice shall be deemed given upon receipt or three (3) days after the date of mailing, whichever is earlier.
- WAIVER. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless granted in writing and signed by an authorized representative of the waiving party.
- MEDLEY'S AUTHORIZED REPRESENTATIVE. For purposes of this Agreement, Medley's authorized representatives are limited to its Chief Financial Officer or Chief Operating Officer.
- SUBMISSION BY MAIL, EMAIL OR FACSIMILE. The Insertion Order may be delivered mailed, emailed or faxed by either party and will be deemed an original.
Version 1: http://medley.com/go/page/IOmaster_agreementv1.html?
Version 2.5: http://medley.com/go/page/IOmaster_agreement.html?