Pursuant to the terms of the Agreement, MMADs grants Advertiser access to MMADs’s proprietary Platform. The Platform enables Advertiser to locate and obtain the services of prospective publishers (“Publishers”) to participate in Advertiser-sponsored e-mail marketing campaigns whereby such Publishers agree to distribute certain Creative (as defined below) provided by Advertiser via e-mail (“Publisher E-mail”), on a cost per thousand impressions (“CPM”) basis (the “Campaigns”). Publishers that utilize the Platform shall be permitted to post descriptions of their respective proprietary e-mail database(s) (collectively, “Publisher Databases”), as well as the CPM rates that each such Publisher charges in connection with Campaigns, in order to provide Advertiser with such information. For purposes of the Agreement, “Platform” means, collectively, all software programs, applications, technology, features, functionality, documentation and content used in connection with the Publisher/Advertiser platform, including the web-based administration services and interface, as may be modified in accordance with the Agreement from time-to-time. Where Advertiser selects a Publisher for participation in a given Campaign, that Publisher may distribute Publisher E-mail on behalf of Advertiser in connection with the applicable Campaign (the “Publisher Services”). Advertiser acknowledges and agrees that MMADs: (a) operates the Platform as a neutral party; (b) does not engage in any marketing activities in connection with the Campaigns; and (c) shall not, under any circumstances, be responsible or liable, in any way under any circumstances, for any claim associated with, arising out of or related to: (i) the acts or omissions of any Publishers; and/or (ii) the Publisher E-mails, Publisher Services and/or Publisher Database.
Advertiser shall develop all aspects of the creative marketing technology, including copy, images, graphics, banner ads, links and “subject” and “from” lines to be used in connection with the Campaigns (collectively, the “Creative”). The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Creative. MMADs reserves the right, in its sole discretion and without liability, to: (a) change any of its Creative specifications at any time; and (b) to reject, omit, exclude or terminate any Creative at any time in its reasonable discretion, upon notice to Advertiser, whether or not such Creative was previously acknowledged, accepted or published by MMADs. Such reasons for rejection, omission or exclusion of Creative include, but are not limited to, where MMADs determines, in its sole discretion, that the Creative, including the applicable products and/or services promoted by such Creative (“Advertiser Products”), and any websites linked to from such Creative: (i) are in breach of the Agreement; (ii) are in violation of any applicable law, rule, regulation or other judicial or administrative order; or (iii) may tend to bring disparagement, ridicule or scorn upon MMADs and/or its Publishers.
3. Payment; Tracking and Reporting.
4. Platform Availability.
Advertiser understands that, on occasion, the Platform may be inaccessible, unavailable or otherwise inoperable for any reason including, but not limited to, the following: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs; and/or (c) causes beyond MMADs’s control or which are not reasonably foreseeable by MMADs including, but not limited to, interruption or failure of telecommunications or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Advertiser agrees that MMADs has no control over, and shall not be liable for, the availability of the Platform on a continuous or uninterrupted basis. Further, Advertiser understands and agrees that MMADs’s failure to provide access to the Platform because of technical difficulties shall not be considered a breach and/or failure to meet its obligations under the Agreement.
5. Ownership of Platform.
MMADs owns all right, title and interest in and to the Platform including, without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. MMADs grants Advertiser a limited, revocable, royalty-free, non-exclusive, non-transferable license to access and use the Platform for the Term (as defined below) only. Advertiser acknowledges that the rights granted under the Agreement do not provide Advertiser with title to, or ownership in, the Platform, but only a right to use the Platform subject to and under the terms and conditions of the Agreement. All rights not expressly granted to Advertiser hereunder are reserved by MMADs. Advertiser may not, and may not knowingly permit any third party to: (a) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Platform; or (b) use, evaluate or view the Platform for the purpose of designing or creating a product or service competitive with/to MMADs’s products or services.
6. E-Mail Marketing Requirements.
The e-mail marketing requirements set forth in this Section 6 (the “Requirements”) state the minimum standards that Advertiser must adhere to in light of current laws, rules and regulations governing the transmission of e-mail and best practices in the industry. In the event that any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the Effective Date of this Advertiser Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such subsequently enacted or amended law, rule or regulation shall apply to Advertiser, notwithstanding anything to the contrary set forth in these Requirements. Advertiser shall be responsible for ensuring that all Creative to be delivered in connection with a Campaign is prepared in accordance with all applicable law including, but not limited to, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), the EU General Data Protection Regulation (“GDPR”), Canada’s Anti-Spam Legislation (“CASL”), the Michigan Children’s Protection Registry (https://www.protectmichild.com/senders/), the Utah Child Protection Registry (https://www.registrycompliance.com/apply.html), the Children’s Online Privacy Protection Act, and the Federal Trade Commission’s report entitled, “Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers,” as amended (collectively, “Applicable Law”). Advertiser is solely responsible for all consumer complaints in connection with the Campaign content. Advertiser represents and warrants that it shall: (a) include within all Creative, a toll-free telephone number or valid e-mail address at which recipient may contact Advertiser to file complaints and/or opt-out; (b) include within all Creative, a valid physical postal address for Advertiser; and (c) include within all Creative, a functioning unsubscribe link which, when activated by user, actually and permanently removes the user’s e-mail address from Advertiser’s subsequent e-mail marketing campaigns.
7. Suppression Lists.
Advertiser may provide MMADs and any applicable Publishers with a copy of the Advertiser-generated Suppression List in an anonymous, encrypted format only. If no such e-mail addresses are supplied by Advertiser, MMADs and its Publishers may conclude that no such addresses exist.
The Agreement shall commence on the Effective Date and continue for a period of twelve (12) months (“Initial Term”). Thereafter, the Agreement shall automatically renew on a month-to-month basis (the Initial Term, together with each such monthly renewal, the “Term”). Either party may terminate the Agreement at any time during the Term, with or without cause, upon five (5) business days’ prior written notice to the other party. Either party may terminate the Agreement immediately upon written notice if the other party materially breaches the Agreement.
9. Representations and Warranties.
Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the acceptance of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when accepted, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms; and (d) its marketing activities will neither infringe upon any copyright, trademark, U.S. patent or any other third party right, nor knowingly violate any Applicable Law or regulation.
Advertiser agrees that, at all times during the Term, it shall maintain accurate books and records relating to Advertiser’s compliance with Applicable Law and the terms of the Agreement (collectively, the “Audit Items”). Advertiser agrees that MMADs, or any designee of MMADs that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the Term, and for six (6) months thereafter, to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Advertiser at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at MMADs’s sole cost and expense and shall be strictly limited to those books and records that specifically relate to the Audit Items. Notwithstanding the foregoing, if MMADs uncovers any material misconduct associated with Advertiser’s compliance with Applicable Law and/or the terms of the Agreement, then the audit shall be at the sole cost and expense of Advertiser.
Advertiser agrees to indemnify, defend and hold harmless MMADs, its subsidiaries, agents, contractors, shareholders, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any: (a) breach of the Agreement by Advertiser; (b) any actual or alleged violation of Applicable Law; and/or (c) claim related to the Creative, Advertiser website(s), Advertiser’s use of the Consumer Data and/or Advertiser Products. MMADs agrees to indemnify, defend and hold harmless and/or, its subsidiaries, agents, contractors, officers, directors, members and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any third party claim that MMADs has breached the Agreement.
During the Term, and until such time as the “Confidential Information” (as defined below) is no longer protectable under applicable law, neither party will use or disclose any “Confidential Information” of the other party except as specifically contemplated herein. “Confidential Information” means information that: (a) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, MMADs’s Confidential Information shall include, without limitation, all aspects of the Platform and MMADs’s Suppression Lists. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this Section 12 by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party’s Confidential Information to the disclosing party.
13. Disclaimer of Warranties.
THE PLATFORM, SUPPRESSION LISTS AND TRACKING CODES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE PLATFORM, SUPPRESSION LISTS AND TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. MMADs HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE PLATFORM, SUPPRESSION LISTS AND TRACKING CODES. MMADs MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE CAMPAIGNS CONTEMPLATED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
14. Limitation of Liability.
IN NO EVENT SHALL MMADs BE LIABLE TO ADVERTISER FOR: (a) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY; OR (b) MORE THAN THE CPM REVENUE PAYMENTS PAYABLE BY ADVERTISER HEREUNDER, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT THE MUTUAL PROMISES CONTAINED HEREIN REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
Advertiser recognizes that MMADs has proprietary relationships with the Publishers that participate on the Platform. Other than through the Platform as contemplated under the Agreement, Advertiser agrees not to circumvent MMADs’s relationship with its Publishers, or otherwise request, solicit, hire, contract for or otherwise obtain, directly or indirectly, advertising, marketing or promotional services similar to the services provided by and through the Platform from any Publisher during the Term and for the one (1) year period following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that it already obtained such services from any such Publisher prior to the Effective Date, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 15 will not be adequate and that MMADs shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Advertiser in an amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher(s) in violation of this Section 15 for the prior twelve (12) month period; and/or (c) any and all other remedies available to MMADs at law or in equity.
No delay or failure by either party to exercise any right under the Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided for herein. A waiver of default shall not be a waiver of any other or subsequent default.
17. Entire Agreement.
This Advertiser Agreement, together with the Policies, contains the entire agreement between the parties. No modification of the Agreement shall be effective unless in writing and executed by an executive officer of both parties.
If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any Applicable Law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
19. Relationship of the Parties.
The relationship of MMADs and Advertiser established by the Agreement is solely that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representation, warranty or covenant, or assume or create any obligation, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives. Both parties acknowledge that Advertiser’s employees are not, nor shall they be deemed to be, employees or independent contractors of MMADs.
Neither party shall, without the prior written consent of the other party, assign its rights or delegate its duties under the Agreement, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either party may, in the event of a merger, acquisition or sale of substantially all of such party’s assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other party. The provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
21. Force Majeure.
Other than with respect to payment obligations arising hereunder, each party shall be excused from the performance of its obligations under the Agreement and any delay or failure in performance by such party shall not be grounds for termination of the Agreement for cause or give rise to any liability for damages, to the extent that such party is prevented from performing due to a cause that is beyond its reasonable control including, but not limited to, an act of God, act or omission of the other party, act of any government or regulatory body (whether civil or military, domestic or foreign), fire, explosion, flood, earthquake or other natural or man-made disaster, epidemic, sabotage, war, riot, civil disturbance, strike, labor dispute, loss of electrical or other power or telecommunications equipment (each a “Force Majeure Event”). Each party agrees to use commercially reasonable and diligent and determined efforts to minimize the length and effects of delays that occur due to the occurrence of a Force Majeure Event. Each party agrees to provide prompt notice to the other party to the extent such party is relying or expects to rely on the provisions of this subsection to excuse its delay or failure to perform.
All section headings and captions have been inserted for convenience only and shall not affect the interpretation of the Agreement.
23. Electronic Signatures.
Advertiser acknowledges and agrees that Advertiser accepts this Advertiser Agreement and any and all Policies via electronic means rather than via traditional handwritten signature (“Electronic Acceptance”). Advertiser acknowledges and agrees that by clicking on the submit button, or taking such other action as may be designated by MMADs as a means of accepting this Advertiser Agreement and any and all Policies, Advertiser is submitting a legally binding electronic signature and is entering into a legally binding contract. Advertiser acknowledges that Advertiser’s electronic submission constitutes Advertiser’s agreement and intent to be bound by this Advertiser Agreement and any and all Policies. Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation and other similar state and federal statutes, ADVERTISER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PLATFORM, WEBSITES AND/OR SERVICES OFFERED BY MMADs. Further, Advertiser hereby waives any rights and/or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Advertiser acknowledges and agrees that it has the ability to print information delivered to Advertiser electronically, or otherwise knows how to store that information in a way that ensures that it remains accessible to Advertiser in unchanged form.
24. Third Party Beneficiary.
Advertiser acknowledges and agrees that Publisher is an intended third party beneficiary of the representations and warranties made to MMADs under this Agreement.