ReachYield: terms

ReachYield Advertiser Master Terms and Conditions

REACHYIELD ADVERTISER MASTER TERMS AND CONDITIONS

These Master Terms are entered into by Advertiser and set forth the terms and conditions upon which ReachYield may deliver any Advertiser’s Campaign. Capitalized words used in these Master Terms shall have the meanings ascribed to them in Section 2 below.

Definitions

“Action” means an act or event by a third party upon which Advertiser’s payment obligation is based, as set forth in this Agreement.
“Ad Unit” means Advertiser’s advertising unit.
“Addendum” means an addendum attached hereto or otherwise agreed to by Advertiser and ReachYield that incorporates these Master Terms.
“Advertiser” means the individual or the business, company or other entity that accepts these terms electronically or otherwise or that enters into an Addendum or Insertion Order with ReachYield.
“Advertising Content” means the Ad Unit and/or any keywords, content, applications, products, and/or services associated with the Campaign, including but not limited to the content and operation of any Web pages associated with the Campaign.
“Agent” means an agency acting on behalf of Advertiser.
“Agreement” means these Master Terms and any applicable Addendum and Insertion Order.
“Campaign” means (i) the delivery of an Ad Unit by ReachYield across ReachYield’s applicable Network and, generally, consists of the Advertiser-selected Ad Unit, budget, flight date(s), and if/as applicable, category and geo-targeting selection(s), and/or (ii) the delivery of users to Advertiser content including, but not limited to, Web pages.
“Consumer Data” means consumer-related data collected or provided by Advertiser under this Agreement, including but not limited to email addresses.
“CPA” means cost per action.
“CPC” means cost per click.
“CPI” means cost per install.
“CPM” means cost per thousand impressions.
“CPU” means cost per user.
“CPV” means cost per view.
“Insertion Order” means a signed insertion order agreed to by Advertiser and ReachYield that incorporates these Master Terms.
“Install” means an installation of an application by a third party upon which Advertiser’s payment obligation is based, as set forth in this Agreement.
“Law” means applicable laws, rules, regulations, treaties, and statutes.
“Master Terms” means these ReachYield Advertiser Master Terms and Conditions and each Addendum.
“Network” means ReachYield or third party distribution networks, which may include but not be limited to the following: domain, email, newsletter, search, push notifications, mobile, and displayed web content.
“Privacy Policy” means a privacy policy that complies with Law, that is prominently available to users, and that contains the following: (i) a description of the use of advertising technology relating to data collection and targeting activities, (ii) a description of the collection and use of user data by Advertiser and third parties, (iii) a description of the provision of user data to third parties, and (iv) a free, functioning, easy to use “opt-out” or “unsubscribe” method for users to opt-out of data collection.
“ReachYield” means ReachYield, Inc. or, as may be identified in an Addendum or an Insertion Order, a subsidiary thereof.
“ReachYield Intellectual Property” means the intellectual property made available to Advertiser by ReachYield under this Agreement (which may include, without limitation, ReachYield’s email, push notification, and/or mobile inbox technology).
“Taxes” means any government imposed taxes or charges imposed on Advertiser pertaining to the performance of this Agreement, including but not limited to value added, sales, use, withholding, and excise taxes.

Campaigns

(a) From time to time, Advertiser may direct ReachYield to run Campaigns which have been approved by Advertiser pursuant to this Agreement. Ad Units shall generally be displayed across the Network on or within ReachYield or third party creative content, unless Advertiser opts out of a Network in the manner specified by ReachYield. Additionally, users may be redirected by ReachYield and/or its publishers to the Advertising Content via direct navigation. For example purposes only, and without limitation to other examples that may apply, if Advertiser bids on the category “car insurance,” when an end user clicks on a car insurance link on a participating ReachYield or publisher website or clicks on car insurance creative in an email, the user may be redirected to Advertiser’s website.
(b) All requested URL links, category choices, descriptions and bids are subject to ReachYield’s approval. ReachYield reserves the right to reject, cancel or remove any Advertising Content, URL link, website to which an Ad Unit is linked, category selection(s), terms, descriptions and bids at any time for any reason whatsoever and ReachYield, its employees, consultants and other agents shall have no liability for such decisions. ReachYield does not guarantee that the Advertising Content will be available or displayed and Advertiser understands that ReachYield reserves the right to not place Ad Units.
(c) REACHYIELD’S SERVICES ARE SUBJECT TO PERIODIC UPDATING, WHICH MAY RESULT IN INTRODUCTION, WITHOUT NOTICE, OF NEW DISTRIBUTION NETWORKS AND/OR ELIMINATION OR MODIFICATION OF EXISTING NETWORKS, AND CERTAIN PRODUCT OFFERINGS MAY BE CPA OR CPC BASED, NOTWITHSTANDING A DIFFERENT MODEL FROM SOME OR ALL OF THE OTHER PRODUCTS IN THE SAME NETWORK. SUCH MODIFICATIONS MAY HAVE AN ADVERSE IMPACT ON THE QUALITY OF CLICKS, ACTIONS, IMPRESSIONS, INSTALLS, OR OTHER PAYABLE EVENT UNTIL EACH UPDATE IS ASSESSED, PERFECTED OR REJECTED IN ReachYield’S SOLE DISCRETION.

Payment

Advertiser shall pay for all charges incurred by Advertiser in connection with Advertiser’s Campaign. Unless otherwise set forth in an Insertion Order or an Addendum, the amounts owed are measured by tracking reports prepared by ReachYield, and Advertiser understands and agrees that such reports shall be sole measure of the amounts owed. Without limitation to the foregoing, if ReachYield grants Advertiser access to third party tracking reports, Advertiser understands and agrees that access to such reports is provided only for purposes of estimating amounts owed. Advertiser agrees to make timely payment to ReachYield regardless of whether Advertiser receives payment from its client, customer or any other third party. Advertiser acknowledges and agrees that Advertiser may be charged an amount up to ten percent (10%) more than Advertiser’s monthly Campaign budget for charges incurred resulting from the time it takes to effectively cease further payable events.
Unless otherwise agreed in an Insertion Order or an Addendum, Advertiser’s full payment for each Campaign is due prior to commencement of the Campaign and may be made through ACH, wire transfer or any major credit card, unless otherwise required by ReachYield. Advertiser shall pay for all charges in US Dollars, unless otherwise agreed in writing by ReachYield. A non-refundable deposit of $500 (or other amount specified by ReachYield, in its sole and absolute discretion) to cover set-up costs may be required by ReachYield to initiate services to Advertiser. If Advertiser is offered and selects an auto-replenish feature, Advertiser hereby authorizes ReachYield to charge Advertiser’s credit card for the predetermined amount set by Advertiser. If ReachYield is unable to charge Advertiser’s credit card, ReachYield may, in its sole discretion and in addition to any other remedies available to it under this Agreement and any and all Laws, suspend or terminate Advertiser’s account.
Advertiser shall be responsible for the payment of any and all charges and/or fees incurred by ReachYield from any credit chargeback due to improper credit card information provided to ReachYield. ReachYield may, in its sole discretion, extend, limit, revise, or revoke credit terms to Advertiser, which may include, but not be limited to, requiring a parent guaranty. Advertiser understands and agrees that if Advertiser is past due in payments owed to ReachYield under this Agreement,
(i) such past due payments shall accrue interest at the rate of 1.5% per month or the highest rate permitted by law, if less,
(ii) all costs of collection, including but not limited to reasonable attorney’s fees, court costs and related expenses, shall be borne by Advertiser, and,
(iii) ReachYield may offset that amount from any payment otherwise owed by ReachYield or any parent, subsidiary, or affiliate of ReachYield to Advertiser or any parent, subsidiary, or affiliate of Advertiser. Advertiser is responsible for and shall pay all Taxes in connection with Advertiser’s performance hereunder. Payments due under this Agreement are exclusive of Taxes, unless otherwise agreed in writing by ReachYield.
If Advertiser selects a CPC-based Network, payment obligation is based solely on the number of clicks and redirects multiplied by the amount Advertiser bid to pay for each click or redirect and not Advertiser’s ability to convert clicks or redirects to sales, registrations or other user actions. When Advertiser is the winning bidder for the display on the Network of Advertiser’s Ad Unit, the winning CPC bid price may be below Advertiser’s maximum CPC bid price, and shall not exceed Advertiser’s maximum CPC bid price, unless otherwise approved by Advertiser.
If Advertiser selects a CPA or CPI-based Network, Advertiser shall pay ReachYield the CPA and/or CPI amount agreed by Advertiser for each Action and/or Install recorded by tracking pixel. Advertiser understands that it must place the tracking pixel and that ReachYield is not responsible for such placement. Advertiser shall (1) pay for each fired pixel (e.g., even if Advertiser later determines the pixel was not placed on the appropriate page), and (2) be responsible for any tracking error which occurs as a result of Advertiser’s action or inaction in performance of this Agreement (by way of example and not by way of limitation, if Advertiser accidentally causes a pixel to activate or otherwise confirm a transaction, it shall be liable to pay for each resulting action). With respect to payments for CPA-based lead generating services, an invalid lead shall be a lead generated with:
(i) inaccurate personal information;
(ii) personal information which cannot be confirmed;
(iii) inaccurate credit card information; or,
(iv) a bot, script or any means other than a living human being with a bona fide intent to provide data about him or herself.
If Advertiser selects (i) a CPU or CPV-based Network, Advertiser shall pay ReachYield the CPU and/or CPV amount agreed by Advertiser for each user and/or view recorded, and (ii) a CPM-based Network, Advertiser shall pay ReachYield the CPM amount agreed by Advertiser for each impression. Any demand for a chargeback, credit or refund for a product or Network service shall be tendered in writing to ReachYield
(i) for prepaid accounts, within thirty (30) calendar days after the charge occurred,
(ii) for invoiced accounts, within thirty (30) calendar days after payment due date, or,
(iii) if applicable, the period specified in the respective Addendum or Insertion Order.
Any demand for a chargeback, credit or refund for a product or Network service may be investigated by ReachYield, and ReachYield shall not be obligated to chargeback, credit or refund after the period referenced in the immediately preceding sentence. Advertiser shall promptly pay all amounts billed and invoiced by ReachYield, notwithstanding Advertiser’s challenge to some or all of a particular invoice, and shall promptly and reasonably cooperate with any investigation undertaken by ReachYield in connection with payment(s) for services hereunder. ReachYield may issue to Advertiser a credit or refund, as it deems appropriate in its sole discretion. Advertiser understands that investigations may take several weeks to complete. Requests for information may include but not be limited to sub-IDs, IP address, and in the case of a lead challenged as being invalid, all information which was submitted in the lead form. Advertising credits provided by ReachYield shall expire, and be forfeited, upon the earlier to occur of:
(1) termination or expiration of this Agreement or the applicable Insertion Order or Addendum, or
(2) six (6) months after issuance by ReachYield.
Advertising credits are non-refundable and may only be used for advertising in the Network for which such credits were issued.

Representations and Warranties of Advertiser

Advertiser is solely responsible for the Advertising Content and any and all liabilities, losses, costs, claims, and expenses arising out of or relating to the Advertising Content. Advertiser represents and warrants that:
(a) it is a business duly organized and in good standing in its jurisdiction of organization, and has full power and authority to execute and be fully bound by the terms of this Agreement;
(b) Advertiser owns and/or has the right and authority to permit the use, reproduction, distribution, and transmission of the Advertising Content;
(c) the Advertising Content (i) is factually accurate, (ii) does not contain any fraudulent or deceptive materials, and (iii) does not contain any material which misrepresents or defames any individual or group, or any material which discriminates against persons on the basis of age, color, national origin, race, religion, gender, sexual orientation, handicap, or other prohibited basis;
(d) the Advertising Content does not promote or make claims that are not easily provable, and does not falsify the Ad Unit or message being communicated;
(e) the Advertising Content and the use, reproduction, distribution, or transmission thereof does not (i) violate any Law, codes governing standards of practice, or industry best practices, or (ii) infringe, dilute, misappropriate or otherwise violate any rights of any third party, including but not limited to, any copyright, patent, trademark, trade secret, or other proprietary or property right, or constitute false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, or any other right of any person or entity;
(f) if the Advertising Content is subject to specialized Law, Advertiser is a member, duly licensed and in good standing, in its regulated community, fully expert in and compliant with such Law and any additional rules or guidelines which ReachYield may issue applicable thereto;
(g) Consumer Data shall comply with all applicable terms of service, Laws, and codes governing the collection and use of such Consumer Data;
(h) Consumer Data shall only be collected by Advertiser according to the terms of an Advertiser Privacy Policy; and (i) Advertiser shall not tender Consumer Data to ReachYield absent Advertiser’s express right and ReachYield’s express request for the same. Representations and Warranties of ReachYield ReachYield represents and warrants that:
(a) it is a corporation duly organized and in good standing in its state of incorporation, and has full power and authority to execute and be fully bound by the terms of this Agreement;
(b) the delivery by ReachYield of Advertiser’s Campaign complies with applicable U.S. state and federal Laws, including but not limited to the CAN-SPAM Act of 2003; and,
(c) creatives and content used by ReachYield in Advertiser’s Campaign
(i) are owned or validly licensed for use by ReachYield, or are in the public domain,
(ii) shall not be used in a manner constituting defamation, libel or patently offensive obscenity, and,
(iii) shall not infringe, dilute, misappropriate or otherwise violate any copyright, trademark, trade secret or other similar intellectual property rights of any third party, or otherwise violate or breach any duty toward, or rights of, any person or entity, including rights of privacy and publicity.

Limitation of Liability

UNDER NO CIRCUMSTANCES WILL REACHYIELD BE LIABLE TO ADVERTISER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, REVENUE OR DATA IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF REACHYIELD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE TOTAL AGGREGATE LIABILITY FOR REACHYIELD ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY ADVERTISER TO REACHYIELD FOR THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. ADVERTISER SHALL NOT HOLD ReachYield OR ITS AFFILIATES LIABLE OR RESPONSIBLE FOR THE ACTIVITIES OF VISITORS WHO COME TO ADVERTISER’S WEBSITE(S) THROUGH A LINK OR REDIRECT PROVIDED FROM REACHYIELD AND/OR AN REACHYIELD PUBLISHER.

Indemnity

Advertiser shall defend, indemnify and hold ReachYield, and its directors, officers, employees, representatives, publishers, agents, parents, and subsidiaries harmless from and against any judgment, loss, liability, cost, damage, or expense (including reasonable attorneys’ fees) arising out of a third party claim relating to a breach of this Agreement by Advertiser or any act or omission by Advertiser. Any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) that is subject to the indemnification obligations set forth herein shall be subject to the prior written approval of ReachYield, in its sole reasonable discretion, if such settlement or resolution results in any further obligation or liability for ReachYield.

Disclaimer of Warranties

OTHER THAN AS EXPRESSLY STATED HEREIN, EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, REACHYIELD SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING:
(A) THE NETWORK AND THE FUNCTIONALITY OR AVAILABILITY OF THE NETWORK,
(B) THE NUMBER OF PERSONS WHO VIEW ADVERTISING CONTENT,
(C) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM HAVING ADVERTISING CONTENT ADVERTISED HEREUNDER,
(D) THE QUALITY OF CLICKS, ACTIONS, IMPRESSIONS, OR INSTALLS DELIVERED TO ADVERTISER OR HOW MUCH OF A LISTING IS DISPLAYED ACROSS THE NETWORK, AND,
(E) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE SERVICES PROVIDED BY ReachYield HEREUNDER. FURTHER, ReachYield DOES NOT GUARANTEE ANY RETURN ON INVESTMENT.

Termination

Any party may terminate this Agreement or any and all Insertion Orders or Addendum for convenience upon two (2) business days prior written notice to the other or upon the notice period set forth in an Addendum or an Insertion Order. Advertiser’s sole and exclusive remedy for dissatisfaction with the services provided by ReachYield is termination of this Agreement. Failure by Advertiser to submit an Ad Unit for more than a year for a Campaign may result in termination of Advertiser’s account at ReachYield’s option, which if exercised constitutes termination of this Agreement by ReachYield, with no obligation to provide notice. Notwithstanding anything to the contrary in this Agreement, any amount remaining in an Advertiser account under $75 after termination or expiration of this Agreement and deduction of any non-refundable deposit shall be forfeited to ReachYield; ReachYield’s sole obligation shall be to mail one check, first class, to the last known address of Advertiser for any greater amount.

Intellectual Property

Advertiser shall not:
(a) copy, modify, decompile, reverse engineer, disassemble, decompile, creative derivative works of, or otherwise attempt to derive source code from the ReachYield Intellectual Property;
(b) distribute, sell, rent, lease, sublicense or transfer any ReachYield Intellectual Property to any third party, or use any other intellectual property made available under this Agreement for any purpose other than as expressly permitted under this Agreement, or otherwise allow direct or indirect use of the ReachYield Intellectual Property or other intellectual property made available under this Agreement by any third party;
(c) remove, modify or obscure any ReachYield Intellectual Property or other proprietary rights notices that appear in the ReachYield Intellectual Property; or,
(d) use the ReachYield Intellectual Property to create any competitive products or services. ReachYield reserves all right, title, interest and ownership in the ReachYield Intellectual Property.

Agent

If these Master Terms are entered into by an Agent, Agent represents and warrants that it has the power and authority as Advertiser’s agent to bind Advertiser to this Agreement, and that all of Agent’s actions related to this Agreement will be within the scope of such agency. Agent agrees to use commercially reasonable efforts to collect and clear payment from Advertiser on a timely basis. Agent acknowledges and agrees that ReachYield may seek payment directly from Advertiser if ReachYield has not received payment in a timely manner.

Survival of Obligations

The term of this Agreement shall begin on the date Advertiser’s application to open an advertising account is accepted by ReachYield. This Agreement may expire or terminate as described herein. The terms of Sections 1, 2, and 7 through 21 of these Master Terms shall survive any termination or expiration of this Agreement, together with Advertiser’s obligation to make payments to ReachYield under this Agreement for services rendered before the date of termination or expiration.

Confidential Information

(a) As used in this Agreement, “Confidential Information” means information (whether in oral, written or electronic form) belonging or relating to ReachYield, its business affairs or activities which is not in the public domain and which:
(i) ReachYield has marked as confidential or proprietary,
(ii) ReachYield has, either orally or in writing, advised Advertiser is of a confidential nature, or,
(iii) due to its character or nature, a reasonable person in a like position to the recipient of such information under this Agreement, and under like circumstances, would treat as confidential and, for the avoidance of doubt, “Confidential Information” shall include the terms of this Agreement, information about the services provided hereunder, and the technical formulae and processes, product designs, audit results, sales, cost and other unpublished financial information, product and business plans, projections, and marketing and promotional data related thereto.
(b) Advertiser shall maintain the confidentiality of ReachYield’s Confidential Information and shall not, without the prior written consent of ReachYield, use, disclose, copy or modify ReachYield’s Confidential Information (or permit others to do so) other than as necessary for the performance of Advertiser’s rights and obligations under this Agreement. Advertiser undertakes to disclose ReachYield’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement, and to procure that such persons are made aware of and agree to observe the obligations in this Section 14.
(c) The provisions of this Section 14 shall not apply to information which:
(i) is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
(ii) is lawfully received from a third party free of any obligation of confidence at the time of its disclosure; or,
(iii) is independently developed by Advertiser, Advertiser’s officers, employees, agents or contractors, as evidenced by written documents or records.
(d) In the event that Advertiser is required by law, stock exchange, regulatory body, court or governmental order to disclose Confidential Information, then Advertiser shall, prior to any disclosure and unless prohibited by law, notify ReachYield and at ReachYield’s request and cost, assist ReachYield in opposing any such disclosure.
(e) Advertiser shall administer and protect ReachYield’s Confidential Information with at least the same degree of care used to administer and protect Advertiser’s own Confidential Information, and in any event, with no less than reasonable care.

Publicity

Advertiser grants ReachYield a limited, revocable, fully-paid, royalty-free, worldwide right and license to display Advertiser’s logo in promotional material to identify Advertiser as a customer of ReachYield. Additionally, ReachYield may reference Advertiser in a general press release which does not reveal any specific terms or conditions of this Agreement, depicting Advertiser’s corporate logo, publicizing the fact that an agreement has been executed. Any other public statement or press release referencing the name or trademark of a party shall only be made upon the express prior written consent of such party.

Entire Agreement

This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, communications, and understandings (whether written or oral) between the parties, with respect to their subject matter. No party has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement, any correspondence or communication preceding the execution of this Agreement, or any prior course of dealing between the parties. If there is any conflict between the terms of these Master Terms, an Addendum, and any Insertion Order, the order of priority for resolution of the conflict shall be the Insertion Order followed by the applicable Addendum, followed by the Master Terms. Except as otherwise agreed in writing signed by a duly authorized representative of ReachYield, ReachYield expressly rejects any and all terms, conditions and provisions provided by Advertiser that are supplemental to, or otherwise related to, this Agreement including, but not limited to, any standard terms and conditions of Advertiser and any Advertiser insertion order.

Choice of Law and Venue

This Agreement shall be interpreted and enforced in all respects under the laws of the State of Washington, USA as applicable to contracts to be performed entirely within the State of Washington, USA. Any litigation arising out of this Agreement will be brought solely and exclusively in the state or federal courts located in Seattle, Washington, and the parties agree that jurisdiction and venue properly lie in such courts and waive any claim that a proceeding in any such court has been brought in an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

Force Majeure

Except as otherwise expressly stated in this Agreement and except for payment obligations, the parties shall not be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, terrorism, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.

Waiver

Failure by a party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a party’s right to later enforce such provisions.

Severability

If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.

Miscellaneous

Data which Advertiser provides about itself shall be used in a manner consistent with the applicable privacy policy available at www.ReachYield.com, and Advertiser agrees that such data may be used and processed in the United States of America. ReachYield and Advertiser are independent contractors and neither party is an agent, representative, partner or joint venture partner of the other. ReachYield may modify the terms and conditions of this Agreement upon notice to Advertiser, including through publication on ReachYield’s Web site or email notification to Advertiser. This Agreement may only be modified, or any rights under it waived, by an agreement executed by the parties or published by ReachYield on ReachYield’s Web site and executed or acknowledged by Advertiser. Electronic signature or acknowledgement, including entering password and continued use after notice of modification or amendment, shall have the same force and effect as a handwritten signature. Advertiser may not assign or delegate this Agreement, in whole or in part, and any such attempt is void. Notices to ReachYield under this Agreement shall be transmitted via expedited courier to: ReachYield, Inc., Attn: Legal Department, 2901 Marmora Road, Glassgow, Seattle, WA 98122-1090, USA.

ReachYield BIDSYSTEM ADDENDUM

This Addendum shall apply to each Campaign that Advertiser elects to run through the ABS. ReachYield will perform the delivery of Advertiser’s Campaign under this Addendum. For each such Campaign, this Addendum is fully incorporated and integrated with the Master Terms. Capitalized words not otherwise defined herein shall have the meanings ascribed to them in the Master Terms.

Definitions

“ABS” means the ReachYield BidSystem.
“Addendum” means this ReachYield BidSystem Addendum.
“ReachYield” means ReachYield, Inc.
General Subject to ReachYield approval, and acceptance by ReachYield of Advertiser’s participation in the ABS, the Ad Unit will be as specified by ReachYield and provided by Advertiser in the ABS account application, including the clickthrough URL, title, description, favicon, and, if available, Advertiser logo. ReachYield shall review and if necessary modify Advertiser’s category selection and length of requested Ad Unit to ensure consistency with ReachYield policies and procedures. Through its ABS account, Advertiser may control the length of each Campaign through the ability to halt and recommence campaign activity. Campaigns generally begin within two (2) business days of campaign-set up and deposit of funds. The budget for the Campaign shall be the amount Advertiser specified in the ABS account application or an Insertion Order.

Additional Representations and Warranties of Advertiser

In addition to Advertiser’s representations and warranties set forth in the Master Terms and any Addendum and Insertion Order, Advertiser further represents and warrants that it shall access the ABS solely and exclusively to manage its account with ReachYield and shall not share, transfer or assign its access information to any third party. Advertiser shall not use any automated or unauthorized means to access its account or ABS content and shall not share, disseminate or monitor the ABS or content of the ABS for any purpose not explicitly granted in this Agreement.

CUSTOM AUDIENCE ADDENDUM

This Addendum shall apply to each Campaign that Advertiser elects to run through the ReachYield Custom Audience Network. ReachYield will perform the delivery of Advertiser’s Campaign under this Addendum. For each such Campaign, this Addendum is fully incorporated and integrated with the Master Terms. Capitalized words not otherwise defined herein shall have the meanings ascribed to them in the Master Terms.

Definitions

“Addendum” means this Custom Audience Addendum.
“Creative Materials” means creative materials for a Campaign (which may include an Ad Unit or Ad Units for the Campaign(s), a landing webpage for the Campaign(s), or other materials used in or in support of the Ad Units to promote the Campaign(s)).
“ReachYield” means ReachYield, Inc.

General

Advertiser shall, at its sole cost and expense, create and deliver to ReachYield all Creative Materials. Campaigns shall be CPM-based.
Additional Representations and Warranties of Advertiser
In addition to Advertiser’s representations and warranties set forth in the Master Terms and any Addendum and Insertion Order, Advertiser further represents and warrants that it shall comply with the CAN SPAM Act of 2003 and regulations promulgated pursuant thereto in cooperation with reasonable ReachYield requests, including provision and up-date of scrub lists and the use and maintenance of unsubscribe links.

Creative Materials

ReachYield may, upon request of Advertiser, develop and/or modify Creative Materials. Advertiser shall provide ReachYield with such creative assets as are reasonably required for the creation or modification of the Creative Materials, such as creative images, photos of the goods being sold, logos, and descriptions of the goods. To the extent necessary to deliver the Campaign and to develop or modify Creative Materials, Advertiser hereby grants to ReachYield a non-exclusive, royalty-free, worldwide license to use Advertiser’s logo(s), brand(s) and/or other pertinent intellectual property in the Creative Materials ReachYield develops or modifies. Advertiser agrees that Creative Materials developed or modified by ReachYield will not be used in connection with any advertising conducted outside of the ReachYield Network. Advertiser acknowledges and agrees that use of Creative Materials developed or modified by ReachYield outside of the ReachYield Network constitutes a material breach of this Agreement.

Advertiser Approval

Except as set forth below, ReachYield shall not make the Creative Materials that are developed or modified by ReachYield available to its publishers unless such Creative Materials have been approved by Advertiser. Any Creative Materials developed or modified by ReachYield and not approved by Advertiser shall remain subject to Sections 6 and 7, below. Notwithstanding anything to the contrary in this Addendum, ReachYield may make technical changes to Creative Materials and Ad Units to optimize delivery of Campaigns including, but not limited to, changes to sizing and formatting of creative and HTML modifications; provided, however that no material changes may be made to copy, fonts or color schemes without Advertiser’s prior written approval.

Creative Materials Ownership

Title to and ownership of all intellectual property rights of all Advertiser intellectual property shall remain with Advertiser or its third party licensors. Title to and ownership of all intellectual property rights of the Creative Materials developed or modified by ReachYield shall remain with ReachYield, except for such components of the Creative Materials as are provided by Advertiser. Advertiser and ReachYield agree to cooperate to the extent reasonably necessary for either party to enforce their ownership rights, as set forth above, against any infringing third party or parties.

Creative Materials Exclusivity

ReachYield shall have the exclusive right to the use of the Creative Materials developed or modified by ReachYield. Advertiser may not use, and shall not permit, third parties to use, the Creative Materials developed or modified by ReachYield, nor may Advertiser provide the Creative Materials developed or modified by ReachYield to third parties (excluding its employees, auditors, and legal counsel) except through ReachYield or upon ReachYield’s written agreement. This exclusivity shall survive the termination or expiration of this Addendum.

Payment

Unless otherwise set forth in an Insertion Order, Advertiser shall pay ReachYield for all charges incurred by Advertiser in connection with Advertiser’s Campaign under this Addendum within thirty (30) days from the end of the calendar month in which the charge occurred.

ReachYield Email Monetization Agreement (CP)

This ReachYield Email Monetization Agreement (CP) sets forth the terms and conditions upon which Company may access and use the Marketing Services. Capitalized words used in this Agreement but not otherwise defined at first use shall have the meanings ascribed to them in Section 10 below.

Marketing Services

Company shall access Marketing Services for any email address in Company’s proper possession and control, either -
(a) manually, through provision of Licensed Products from ReachYield, or,
(b) through the Software. Company understands each email address must be transmitted in an MD5 hash format so that it cannot be decrypted by ReachYield; except that if Company utilizes AdStation Integrated ADK Relay™ feature, then Company shall upload email addresses in the format provided by ReachYield, and such email addresses will be encrypted into MD5 hash format following such upload.

Revenue Reporting

(a) Revenue Sharing
Unless otherwise set forth in an IO, (i) ReachYield will report to Company the amount of money Company earned the prior day in an online report, and (ii) an automated revenue sharing formula taking into account conversion rates, quality of clicks and market dynamics shall be used to determine the amount of money earned by each party.
(b) Advertiser Payment Collections; Adjustments
ReachYield shall pay Company within thirty (30) calendar days from the end of each month in which the revenue was generated. Company acknowledges and agrees that any banking fees, wire fees, and/or other transaction costs in connection with payments to Company under this Agreement shall be the sole responsibility of Company and may be deducted by ReachYield from payments to Company hereunder. ReachYield shall not be obligated to pay Company for amounts otherwise due if ReachYield:
(i) is required to refund an Advertiser payment due to poor traffic quality, or,
(ii) determines that a click is not valid because it was generated by a bot, script, device or person lacking a bona fide interest in the advertisement which was clicked upon, or,
(iii) discovers a breach by Company of this Agreement, or,
(iv) determines that the reporting provided by Company under an IO is inaccurate. ReachYield reserves the right to withhold payments pending investigation of Company’s account for any of the aforementioned reasons, and may charge back Company’s account in whole or part depending upon the results of such investigation. Further, Company acknowledges and agrees that ReachYield may offset from any payment under this Agreement any delinquent amount owed by Company, or any parent, subsidiary, or affiliate of Company, to ReachYield or any parent or subsidiary company of ReachYield. Company shall pay all taxes imposed by any government entity on Company in connection with Company’s performance of this Agreement.
(c) Reporting
Unless otherwise set forth in an IO, ReachYield shall provide to Company at least daily reports reasonably sufficient to reflect estimates of revenue generated from the Marketing Services. DUE TO REACHYIELD’S AGREEMENTS WITH ADVERTISERS, REVENUE ESTIMATES CANNOT BECOME FINAL AND BINDING UNTIL SIXTY (60) CALENDAR DAYS AFTER THE END OF THE MONTH IN WHICH THE TRAFFIC WAS GENERATED.

Proprietary Rights

(a) ReachYield Limited License to Company
(i) Grant
Subject to the terms and conditions herein, ReachYield grants Company a non-exclusive, fully-paid, royalty-free, non-assignable, non-transferable, non-sub licensable, revocable right and license in use of the Licensed Products solely in the Territory for the purposes set forth in this Agreement. The term “Territory” as used in the immediately preceding sentence shall mean the USA and such other regions as ReachYield may approve, in advance, in writing (email shall suffice).
(ii) License Restrictions
Except as expressly granted in this Agreement, ReachYield owns and retains all right, title and interest in the Licensed Products. This Agreement does not transfer ownership rights of any nature in the Licensed Products to Company or any third party. Company agrees to retain all copyright and trademark notices on the Licensed Products and to follow all requirements reasonably made by ReachYield, as further described herein, to protect ReachYield’s intellectual property rights in the Licensed Products.
(b) Company Limited License to ReachYield
(i) Grant
Subject to the terms and conditions herein, and except when the Marketing Services are provided either manually by ReachYield or are set forth in an IO, Company grants ReachYield a non-exclusive, fully-paid, royalty-free, revocable right and license to the Database, solely for the purposes set forth in this Agreement.
(ii) License Restrictions
ReachYield may provide the Database to third party services to improve overall performance under this Agreement; provided, however, that no third party may send Email to any User as a result of its receipt of the Database from ReachYield.
(c) Protection of ReachYield Intellectual Property
ReachYield grants the above limited license to Company subject to the following conditions:
(i) Company acknowledges that the Software, Marketing Services, Licensed Products, proprietary know-how and technology, and logos (together, the “Intellectual Property”), are the exclusive proprietary property of ReachYield and Company shall have no right to use the Intellectual Property for any purpose, including to develop a competitive product, or the use of ReachYield trademarks in business collateral, without the express written authority of ReachYield, and then only in accordance with instructions provided by ReachYield.
(ii) Company agrees not to copy, modify, duplicate, decompile, disassemble, reverse engineer, or reduce to a human perceivable form or otherwise alter the Software, XML formatted feed, Licensed Products or any part thereof or to create derivative work(s) or a competitive product based on it. Notwithstanding the preceding sentence, and subject to the limitations of liability and disclaimers of warranty set forth herein: (1) sample code provided to Company may be modified by Company for the sole purpose of learning how to effectively use and implement the Marketing Services; and,
(2) ReachYield may provide stand-alone client software which may be modified by Company, that may assist in implementation of the Marketing Services, and which does not constitute Intellectual Property.
(iii) Company agrees to follow all requirements reasonably made by ReachYield to protect the Intellectual Property, patents related thereto and any related intellectual property, all trade names and designs whether covered by trademark, domain name registration or otherwise, all copyrights, trade secrets, Confidential Information and all other intellectual property owned, licensed or hereinafter acquired by ReachYield to perform this Agreement.
(d) Confidential Information
A party receiving Confidential Information agrees :
(1) not to disclose it to any third party or use any of such Confidential Information for its own use or for any purpose except as necessary and consistent with the terms of this Agreement or as required by law,
(2) to limit the use of and access to such Confidential Information to such employees who have a need to know such Confidential Information, and,
(3) that it will promptly notify the other party in writing of any unauthorized disclosures and/or use thereof. The aforementioned notice shall include a detailed description of the circumstances of the unauthorized disclosure or use and the parties involved therewith.
(e) User Data
Any non-personally identifying information associated with the Database collected, derived or obtained in performance of this Agreement by a party (which may include, but not be limited to, click-throughs, Emails opened and other information collected through the use of cookies and/or other technical means) shall be the sole and exclusive property and Confidential Information of such party. Notwithstanding the foregoing, the email addresses in the Database provided by Company to ReachYield shall be the Confidential Information of Company.
(f) Injunctive Relief
In the event of an unauthorized use, reproduction, distribution or disclosure of any Confidential Information, the parties agree that the disclosing party will not have an adequate remedy at law. Therefore, injunctive or other equitable relief may be appropriate to restrain such use, reproduction, distribution or disclosure, as detailed in the section of this ReachYield Email Monetization Agreement (CP) on Equitable Remedies.

Equitable Remedies

The parties agree that it may be impossible to measure in money the damages which will accrue to a party if the other party breaches or threatens to breach any of the covenants, agreements or obligations set forth in this Agreement pertaining to confidentiality or the protection of intellectual property. Accordingly, if any action or proceeding is commenced by or on behalf of a party to enforce any of the provisions contained in this Agreement pertaining to confidentiality or the protection of intellectual property, such party shall be entitled to seek temporary and permanent injunctive relief to restrain any breaches or further violations of those provisions in this Agreement; and the other party agrees that this right to seek injunctive relief shall be in addition to any and all other remedies and damages, including, without limitation, court costs and reasonable attorneys’ fees. All rights conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently.

Third Party Beneficiaries

Company understands and acknowledges that members of ReachYield’s Keyword Network are third party beneficiaries of this Agreement through existing licensing arrangements and other contractual or business relationships.

Indemnification

Company shall defend, indemnify and hold ReachYield and its Keyword Network partners and their advertisers harmless from and against any judgment, loss, damage, claim or expense arising out of a claim by a third party resulting from any breach of any representation or warranty of Company set forth herein, including but not limited to, representations or Company’s compliance with state and federal laws and regulations, such as the CAN-SPAM Act of 2003, governing the distribution of Email over the Internet. This indemnity is conditioned upon:
(a) ReachYield’s prompt notification to Company of any claim for which indemnity is sought;
(b)such reasonable cooperation with Company as Company may request;
(c) selection of legal counsel by Company with consent of ReachYield, which consent shall not be unreasonably withheld; and,
(d) prompt tender of the control of the defense and settlement of any claim to Company. Further, Company shall not enter into any settlement or compromise of any claim without ReachYield’s prior written consent, which shall not be unreasonably withheld. Finally, ReachYield may retain its own legal counsel in the matter for which it is indemnified under this provision, at ReachYield’s sole cost and expense, and Company agrees to execute a joint defense agreement with ReachYield if such counsel is retained.

Representations and Warranties; Limitation of Liability.

(a) Company’s Warranties and Representations. Company warrants and represents that:
(i) It is either not acting as an agent of any principal(s) in obtaining Marketing Services from ReachYield under this Agreement or agrees to unconditionally bear the obligations or payments which may otherwise fall on such principal(s) arising from the terms and conditions of this Agreement, notwithstanding the fact that Company is acting as an agent;
(ii) It is familiar with and complies with the applicable laws and regulations of each region within the Territory;
(iii) Any commercial Email sent by Company pursuant to this Agreement shall:
(1) only be sent to the Database, as defined herein;
(2) not be transmitted to any recipient who has declined to receive additional Email from the list owner (after ten days elapsed from such declination) or who resides outside of the Territory;
(3) not use WHOISGuard or a similar technology which masks the identity of a sender, in connection with its performance of this Agreement;
(4) readily identify to a reasonable person, the list owner or mailing brand in the “from” line of each email sent in performance of this Agreement;
(5) implement the ReachYield footer template using, at a minimum, a text format to display valid physical postal contact information and unsubscribe links, and to advertise or promote Company’s product, service, or Internet web site in each email sent in performance of this Agreement sufficiently to qualify Company as a “sender” under the CAN-SPAM Act of 2003, 15 U.S.C. § 7702(16)(A) and qualify Company as an advertiser under California Business and Professions Code § 17529.5 (for avoidance of doubt, a graphical footer may be used in addition to, but not in lieu of, such text);
(6) include, unaltered by Company, the campaign and creative delivered by the Licensed Products, including without limitation the “subject” line and the “friendly from” line, all of which shall be sent within 24 hours (or such other period of time set forth in an IO) to each User as requested by Company and returned via the Licensed Products;
(7) comply with all applicable state and federal laws, rules, and regulations governing privacy and the transmission of commercial email, including without limitation the CAN-SPAM Act and all rules and regulations promulgated thereunder, as well as regulations governing U.S. export controls and federal election campaign contributions; and,
(8) comply with all applicable international laws, rules and regulations governing privacy and the transmission of commercial email;
(iv) It has a publicly posted privacy policy the terms of which:
(1) permit Company to utilize Email and any other data collected for performance of obligations under this Agreement;
(2) disclose that Company or third-parties cooperating with Company may utilize cookies and place them on a consumer’s computer system; and,
(3) discuss how cookies may be generally blocked or removed from a computer system;
(v) It shall not alter any of the advertising creatives that are a part of the Licensed Products without the prior consent of ReachYield, and shall not add any gambling, inappropriate, patently offensive or pornographic content in or around the creative delivered through the Licensed Products;
(vi) At least once every seven (7) days, it shall apply against its database the suppression list set forth in a report provided by ReachYield;
(vii) It will not alter the click tracking links returned by ReachYield via the Software except to accommodate a redirect for Company’s internal tracking purposes;
(viii) It shall not intentionally distribute unsolicited Email;
(ix) It shall not undertake activity which circumscribes, circumvents or undermines a User’s expressed intent to effectively unsubscribe from the Database;
(x) IT SHALL INCLUDE A FOOTER IN EACH EMAIL IT SENDS, WHICH DISPLAYS COMPANY’S VALID PHYSICAL POSTAL ADDRESS AND A MECHANISM TO UNSUBSCRIBE FROM FUTURE EMAIL SENT BY COMPANY HEREUNDER, AS REQUIRED BY THE CAN-SPAM ACT OF 2003 AND OTHER LAW AND REGULATIONS. FAILURE TO INCLUDE A FUNCTIONING RETURN ELECTRONIC MAIL ADDRESS OR OTHER INTERNET-BASED MECHANISM, CLEARLY AND CONSPICUOUSLY DISPLAYED, PERMITTING A USER TO UNSUBSCRIBE OR OPT-OUT OF FUTURE EMAIL FROM COMPANY, IS A VIOLATION OF LAW;
(xi) It will not create a product or service that is competitive to the Licensed Products, in whole or in part, including automated solutions:
(a) that display Promotional Links on a cost-per-click or cost-per-action basis within emails or

(b) that help a third party determine email offers to deliver to their users based on behavior data;
(xii) It shall tender in writing proof of opt-in data (including at least IP address, opt-in date, and opt-in time) on any User within two business days of any written request by ReachYield, and shall maintain said opt-in proof for each User provided in the performance of this Agreement for three years beginning the day after Company’s last utilization of the Licensed Products;
(xiii) It may only access Marketing Services by utilizing the publisher ID and list IDs as provided by ReachYield, in addition, Company may not share list ID’s with any third party without advance written consent of ReachYield; and
(xiv) It will ensure that Company’s WHOIS contact information for sending domains in performance of this Agreement are complete, valid, and accurate.
(b) ReachYield’s Warranties and Representations. ReachYield warrants and represents that:
(1) it is a corporation duly organized and has full power and authority to enter into this Agreement;
(2) the Licensed Products are wholly owned or properly licensed by ReachYield;
(3) commercially reasonable security measures shall be taken to protect the Database against accidental loss, alteration or unlawful access or processing;
(4) it shall not utilize the Database for any purpose other than performance of this Agreement;
(5) it shall not permit any unauthorized third party access to the Database for any purpose during the term of this Agreement;
(6) it shall comply with the CAN-SPAM Act of 2003 and all regulations promulgated pursuant thereto in performance of this Agreement; and,
(7) after termination or expiration of this Agreement, it shall not make, retain or maintain a copy of the Database.
(c) Disclaimer of Warranties
EXCEPT AS SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ReachYield SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE MARKETING SERVICES.
(d) Limitation of Liability
UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY IN LAW OR EQUITY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, REVENUE OR DATA IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 ABOVE, EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE NET AMOUNT PAID BY ReachYield TO COMPANY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. NOTWITHSTANDING THE FOREGOING, EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR INDEMNIFICATION OBLIGATIONS SHALL NOT EXCEED THE GREATER OF (A) THE NET AMOUNT PAID BY ReachYield TO COMPANY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, OR (B) TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000). EXCEPT AS SET FORTH HEREIN, ReachYield DISCLAIMS ALL LIABILITY OF ANY KIND RELATED TO ITS ADVERTISERS, LICENSORS AND OTHER SUPPLIERS. IN ADDITION, EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Term Survival.
(a) Term
This ReachYield Email Monetization Agreement (CP) or any IO may be terminated upon written notice by one party to the other, for any reason or no reason. If this ReachYield Email Monetization Agreement (CP) is terminated, all IOs will also automatically terminate, effective upon the effective date of termination of this ReachYield Email Monetization Agreement (CP).
(b) Survival
The provisions of Sections 3(c) through (f) of the Section entitled “Proprietary Rights,” the Section entitled “Equitable Remedies,” the Section entitled “Third Party Beneficiaries,” the Section entitled “Indemnification,” the Section entitled “Limitation of Liability,” the Section entitled “General Provisions,” and all payment obligations incurred during the term of this Agreement shall survive the expiration, cancellation or termination of this Agreement for a period of three (3) years. All other rights, obligations and grants made to the parties shall cease upon expiration, cancellation or termination of this Agreement.
General Provisions
(a) Non-Solicit
During the term of this Agreement, Company agrees that it shall not solicit any of ReachYield’s employees to leave the employ of ReachYield without the prior written consent of ReachYield.
(b) Assignment
Neither party may assign this Agreement without prior consent of the other party, which such consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement without consent (i) to a parent or a majority-owned subsidiary of such party, and (ii) pursuant to a merger, acquisition, amalgamation, consolidation or other corporate reorganization, or the sale of all or substantially all of its business or assets. Any assignment or attempted assignment in contravention of this provision shall be null and void.
(c) Authority
Each party represents and warrants that it is a business duly organized and in good standing in its state of creation or incorporation, and has full power and authority to execute and be fully bound by the terms of this Agreement.
(d) Notices
Unless otherwise indicated, notice under this Agreement to ReachYield shall be transmitted by registered mail or reputable overnight courier to Attention: Legal Department, 1010 N. Hancock Street, Philadelphia, PA 19123, and notice to Company shall be transmitted via email, registered mail, reputable overnight courier or via facsimile to the contact information provided by Company to ReachYield. Either party may update its contact information through appropriate notice.
(e) Entire Agreement and Amendment
This ReachYield Email Monetization Agreement (CP) and applicable IOs are fully incorporated and integrated herein, and set forth the entire understanding of the parties with respect to the subject matter of this Agreement, superseding any prior or contemporaneous agreements or understandings, whether written, electronic or oral, which may have existed between the parties on such subject matter. This Agreement will not be varied, amended, or supplemented except as described in the following sentence. Any amendment, interpretation or waiver of any of the provisions of this Agreement shall only be effective in a writing which makes specific reference to this Agreement and is signed (electronic signature shall suffice) by both parties. In the event of any inconsistency between the terms of an IO and this ReachYield Email Monetization Agreement (CP), the terms of the IO will prevail to the extent of the inconsistency.
(f) Governing Law and Venue
This Agreement is to only be construed in accordance with the laws of the State of Washington, as applicable to contracts performed entirely within the State of Washington. The parties consent to the sole and exclusive jurisdiction of, and venue in, the state and federal courts within Seattle, Washington. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
(g) Force Majeure
Except as otherwise expressly stated herein, neither party shall be liable in damages or have the right to cancel or terminate this Agreement for delay or default in performance if such delay or default is caused by unforeseen conditions beyond reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.
(h) Waiver
Failure by either party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a party’s right to later enforce such provisions.
(i) Severability
In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
(j) Captions
Underlined or bold faced section and paragraph captions in this Agreement are for convenience and reference only; the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of any right or obligation in this Agreement.
(k) Gender and Number
Whenever herein the singular number is used, the same shall include the plural and vice versa, and the neuter gender includes the feminine and masculine genders.
(l) Relationship of the Parties
Nothing in this Agreement constitutes or creates a joint venture, partnership or other similar arrangement between the parties. No party may act as an agent for the other party except as expressly stated in this Agreement.
(m) Counterparts
This Agreement may be executed in one or more counterparts, each in the English language and each of which shall be deemed to be an original instrument, and all such counterparts shall together constitute the same agreement. A facsimile or electronic signature, or reasonable indication of assent through electronic means, shall have the same force and effect as a handwritten signature.
Definitions
(a) “Advertiser” means any business that supplies Promotional Links, as defined below, to be inserted in or linked to a ReachYield advertisement unit, whether or not directly solicited by ReachYield.
(b) “Agreement” means this ReachYield Email Monetization Agreement (CP) and each IO.
(c) “Code” means ReachYield’s proprietary HTML code, which is embedded in Company’s Emails and, together with ReachYield’s targeting technology, behavior data and advertiser list, enables Company to deliver advertising creatives that are part of the Licensed Products to the Database.
(d) “Confidential Information” means all information, whether obtained in written, oral or electronic form, of a proprietary nature which is released by one party to the other or otherwise obtained by a party, including without limitation all know-how, business processes, designs, drawings, source code, targeting methodologies, algorithms, object code, customer data such as Company’s email addresses and ReachYield’s advertiser relationships, business plans, contact lists, research, business opportunities, technology, related information and third-party confidential information. Confidential Information, however, does not include information that a party can demonstrate by a preponderance of the evidence: (i) is now or subsequently becomes generally available to the public through no fault or breach on such party’s part; (ii) rightfully in such party’s possession prior to disclosure to such party; (iii) rightfully obtained by such party from a third party who has the right to transfer or disclose it; or (iv) is third party software and/or documentation provided by such party and accompanied by licensing terms that do not impose confidentiality obligations on such use.
(e) “Company” means the individual or the business, company or other entity that accepts this Agreement electronically or otherwise.
(f) “Database” means Company’s collection of MD5 hashed or raw email addresses, each of which was obtained from a bona fide third party user who expressly consented to receive commercial advertisements via email, either in response to a clear and conspicuous request for such consent or at their own initiative, and has not opted out of receiving such email while having a clear and conspicuous opportunity to do so (a “User”).
(g) “Email” means commercial electronic mail messages.
(h) “IO” means a mutually agreed upon insertion order, signed by the parties, which incorporates this ReachYield Email Monetization Agreement (CP) by reference.
(i) “Keyword Network” are the search engines, advertisers and other partners with whom ReachYield has contracted to provide Promotional Links, which when clicked on redirect a User to a particular Website.
(j) “Licensed Products” means the solutions provided by ReachYield to deliver the Marketing Services, including the Software, Code, any related documentation, and advertising creatives (meaning, without limitation, any style of advertisement pulled by Company from ReachYield’s servers in performance of this Agreement).
(k) “Marketing Services” are the services, such as ReachYield’s XML formatted stats feed and proprietary know-how and technology, including its Software and the Code, and/or graphical creatives provided by ReachYield, which ReachYield undertakes, utilizes and/or licenses to Company for use with Company’s Database, Website or other property of Company, along with ReachYield’s advertiser relationships, and the provision of Promotional Links as set forth in an IO.
(l) “Promotional Link” means (i) a text-based advertisement, often referred to as a keyword advertisement, sold by companies similar to Google® and Yahoo! Search Marketing™, or (ii) a graphical creative provided by ReachYield, which when clicked upon redirects a User to a Website promoting a product, service or other initiative.
(m) “ReachYield” means ReachYield, Inc., a Glasgow, Seattle corporation.
(n) “Software” is ReachYield’s proprietary application programming interface, or automated API, which interfaces with Company’s mail transfer agent (that is, Company’s technology to transfer email to desired recipients) and, together with ReachYield’s targeting technology, behavior data and advertiser list, enables Company to deliver email to the Database.

Email Publisher Email Guidelines

These Publisher Email Guidelines (“Guidelines”) set forth certain publisher responsibilities for sending commercial email when using any ReachYield product or service offering. ReachYield publishers must adhere to -
(a) all applicable laws, rules, and regulations, including without limitation, those relating to email advertising, the CAN-SPAM Act of 2003, 15 U.S.C. § 7701 et. seq. and all similar state laws and regulations, and,
(b) their contractual obligations with ReachYield. Failure to do so, or to comply with these Guidelines, could lead to suspension, withholding of publisher payment, fines, or termination of your publisher agreement with ReachYield. If there is any conflict between the terms of these Guidelines and your publisher agreement with ReachYield, the terms of your publisher agreement shall govern and control to the extent of the conflict.

1. General Email Requirements

(a) Privately registered sending domains are not permitted (e.g., you must not use WHOISGuard or a similar technology to mask the identity of the sender of the email). You must provide recipients with your valid physical postal address that corresponds with the address utilized in your sending domain registration (which can be determined by performing a WHOIS look-up). Your WHOIS registration information must contain a valid name and physical address. If a PO Box is used the registrant name must match the PO Box owner’s name.
(b) All email header information must not be false or misleading. In the “From Line” of all emails, you must always identify yourself as the sender (either your company name or a registered DBA). Your “From,” “To,” “Reply-To,” and routing information (which includes the origination domain name and email address) must be accurate.
(c) Subject lines and “friendly from” lines must be included exactly as provided, or approved in advance, by ReachYield.
(d) Ensure that your company name corresponds with your registered business name and the name to which your domains are registered.
(e) If you are using a registered DBA, you must notify your account manager so that ReachYield has a record. The DBA must correspond with the address your business is registered and your domains are registered.
(f) The footer must be clearly visible and displayed in every email message, must be in plain text format, and must contain your company’s name and a link to your company’s website.

2. Opt-out request requirements

(a) Opt-out requests must be honored within ten business days. It is advisable here that the Opt-outs should be honored as quickly as possible (within 48 hours).
(b) An Opt-out link must be clearly visible and operable in every email message.
(c) You must list a return email address or other Internet-based method to allow recipients to contact you and to communicate their email messaging preferences.
(d) Make sure your own SPAM or message filters do not block Opt-out requests from reaching you.
(e) Design the Opt-out request to be easily recognized, read, and understood. You can include a preferences link for recipients to change Options regarding frequency of messages or Opting out of particular types of messages. However, the Option to stop all messages must always be included.
(f) Do not add additional steps to the process (e.g. type in email address) and do not send an email to confirm the Opt-out as this can be seen as sending additional commercial email.
(g) The Opt-out link in each email must remain active for a minimum of thirty days after you send an email.
(h) You must not charge a fee, require the use of a CAPTCHA, or require any personally identifying information beyond an email address from the recipient for the recipient to Opt-out.
• You must not require the recipient to do anything more than sending an Opt-out email reply to you or visiting a single internet website page featuring an Opt-out request mechanism.
• You must not sell or transfer the email addresses of anyone who has Opted out from your email list except for compliance purposes or as otherwise permitted by law.
• Do not send an email to confirm the Opt-out as this can be seen as sending additional emails.
• Do not request an email address to be typed in to Opt-out.

3. Other Requirements

(a) Maintain Opt-in records for at least three years, in the event of a later investigation or lawsuit.
(b) At least once every seven days, apply against your database the user and domain suppression list provided by ReachYield through the publisher platform or otherwise.
(c) If you are contacted by your account manager or a member of the ReachYield Compliance Department, you must respond promptly to acknowledge the receipt of the email and confirm the steps you are taking to resolve any issue.

Distribution Publisher Terms and Conditions

These Terms set forth the rules and regulations upon which the Publisher will distribute Campaigns. Capitalized words used in these terms, but not otherwise defined herein, shall have the meanings ascribed to them in the IO.

1. Definitions

“Advertising Materials” means creatives, copy, and/or URLs for a Campaign.
“Agreement” means each IO and these Terms.
“Application” means the ReachYield Application or third party product specified in the IO.
“Campaign” means an advertising campaign for the promotion and distribution of an Application.
“IO” means a mutually agreed insertion order that incorporates these Terms by reference, under which Publisher will deliver Campaigns.
“Installs” are specified in the IO.
“Payment Dispute Period” means the period of time beginning on the day payment for a calendar month is received by Publisher under this Agreement and ending thirty (30) days thereafter.
“Publisher” means the publisher set forth in the IO.
“Publisher Property or Publisher Properties” means the websites, applications, or other source approved in advance by ReachYield, upon which Publisher displays the Advertising Materials for a Campaign.
“ReachYield” means ReachYield, Inc., a Seattle corporation.
“ReachYield Application” means the ReachYield product specified in the IO, which may include, but not be limited to, the ReachYield MobileInbox Product and/or browser push notification product.
“ReachYield Confidential Information” means any information disclosed by ReachYield, which is designated as “Confidential,” “Proprietary,” or some similar designation, or which under the circumstances surrounding disclosure ought to be treated as confidential. ReachYield Confidential Information does not include information which (i) is or becomes generally available or part of the public domain through no fault of Publisher; (ii) was already known by or available to Publisher prior to the disclosure by ReachYield; (iii) is subsequently disclosed to Publisher by a third party who is not under any obligation of confidentiality to ReachYield; or (iv) as can be shown by written documentation, has already been or is hereafter independently acquired or developed by Publisher without use of or reference to ReachYield Confidential Information, as evidenced by written documents or records.
“ReachYield Marks” means the ReachYield name, the ReachYield logo, and ReachYield’s product and service names.
“ReachYield MobileInBox Product” means the proprietary software and technology developed by ReachYield that allows a user of a mobile device to install an email inbox onto the user’s mobile device.
“Terms” means these ReachYield Distribution Publisher Terms and Conditions.

2. Campaigns

(a) Subject to the terms and conditions of this Agreement, Publisher shall display the Advertising Materials provided by ReachYield on Publisher Properties. Each Publisher Property is subject to review and approval or rejection by ReachYield, in its sole discretion, at any time. Publisher shall implement the Advertising Materials in accordance with any placement requirements and reasonable technical specifications provided by ReachYield. Publisher shall not provide any Advertising Materials unless otherwise agreed in writing by the parties. At ReachYield’s request, Publisher shall (a) disclose the Publisher Properties to ReachYield, and/or (b) cease the use of Advertising Materials on certain or all of the Publisher Properties.
(b) Publisher shall not display the Advertising Materials anywhere other than the Publisher Properties. Additionally, Publisher shall not and shall not authorize or permit any third party to (i) edit, alter, copy, modify, obscure, or minimize the Advertising Materials in any way without the prior written approval of ReachYield; (ii) re-syndicate the Advertising Materials without the prior written approval of ReachYield; (iii) display any Advertising Materials on any error page, on any chat page, or in email; (iv) directly or indirectly access, launch, and/or activate Advertising Materials through or from, or otherwise incorporate the Advertising Materials in, any manner not expressly permitted under this Agreement; or (v) redirect a user away from any ReachYield website to which the Advertising Materials relate, intersperse any content between the Advertising Materials and the applicable ReachYield website, or otherwise provide anything other than a direct link from the Advertising Materials to the applicable ReachYield website.
(c) If the IO contemplates a Campaign for the ReachYield MobileInbox Product, then during the term of this Agreement and for six (6) months following termination or expiration of this Agreement, Publisher agrees not to enter into any agreement or other arrangement with any party other than ReachYield relating to the offering, advertising, distribution, or other marketing of applications or products that are the same as or similar to the ReachYield MobileInbox Product.

3. Payment

(a) ReachYield shall pay Publisher the payment amount for Campaigns as set forth in the IO within thirty (30) days after the end of each calendar month in which the payment was earned. Payment amounts will be measured by tracking reports prepared by ReachYield. ReachYield’s reporting (including, without limitation, determination of the number of clicks, impressions, Installs, or other actions as applicable) shall be the only and definitive measure of payments owed under this Agreement. All payments shall be made in U.S. Dollars, unless otherwise agreed in writing by ReachYield. Any banking fees, wire fees, and/or other transaction costs in connection with the payments to Publisher shall be the sole responsibility of Publisher.
(b) Notwithstanding anything in this Agreement to the contrary, payments may be adjusted by ReachYield for any taxes (excluding taxes assessed on the net income of ReachYield) and other governmental charges. ReachYield will have no obligation to pay Publisher any payments with respect to (i) amounts generated based on Publisher’s breach or alleged breach of this Agreement, (ii) payments earned through invalid activity, as determined by ReachYield in its sole discretion (which shall include, but not be limited to, (1) fraudulent or invalid clicks, impressions, installs, or other actions generated by any user, person, bot, automated program or similar device, (2) payable events originating from Publisher’s IP addresses or computers under Publisher’s control, or (3) clicks, impressions, installs, or other actions solicited by payment of money, the exchange of goods or services, false representation, or request or incentive for users to click, view, install, or take any other action). ReachYield may withhold, chargeback, or keep all or a portion of any payment to Publisher to offset any portion of any payment previously tendered to Publisher in respect of any matter under this Section. Publisher understands that this may reduce the payment owed to Publisher.
(c) Publisher must notify ReachYield in writing within the Payment Dispute Period if Publisher has any dispute relating to any payment under this Agreement. Failure to notify ReachYield of a dispute relating to a payment before the end of the Payment Dispute Period shall result in a waiver by Publisher of any claim relating to such payment. In the event of a dispute regarding payments owed, Publisher will engage in good faith negotiations with ReachYield in an attempt to resolve the dispute. The payments made under this Agreement are for use by Publisher only and may not be assigned, transferred or in any manner passed on to any third party unless expressly authorized in writing by ReachYield. ReachYield may offset from any payment under this Agreement any delinquent amount owed by Publisher, or any parent, subsidiary, or affiliate of Publisher, to ReachYield.
(d) Notwithstanding anything in this Agreement to the contrary, (i) in the event that a payment owed to Publisher is less than fifty dollars ($50), ReachYield may withhold payment until the total amount due is at least fifty dollars ($50), and (ii) in the event that the total payment amount owed to Publisher upon termination or expiration of this Agreement is less than fifty dollars ($50), Publisher understands and agrees that ReachYield is not obligated to send Publisher such Payment and that ReachYield may keep such as amount as an account closure administrative fee.
(e) Publisher is solely responsible for providing and maintaining accurate and current contact information with ReachYield including, but not limited to, payment account and tax-related information. ReachYield shall not be responsible for any delays in payments caused by incorrect banking information or other information supplied by Publisher. Publisher shall be solely responsible for the payment of, shall pay when due, and shall indemnify, defend, and hold harmless ReachYield from and against, all applicable taxes associated with payments to Publisher under this Agreement (except for taxes assessed on ReachYield’s income).

4. Termination/Survival

Either party may terminate an IO or this Agreement upon at least two (2) business days’ prior written notice to the other party. Section 1, Section 2(c), Section 4, and Sections 6 through 11 shall survive termination or expiration of these Terms.

5. Representations and Warranties

(a) Publisher represents and warrants that (i) it has the full right, power, and authority to enter into and perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which it is bound; (iii) it shall comply with all applicable laws, rules and regulations in its performance of this Agreement; (iv) the Publisher Properties are owned and managed by Publisher or are owned and managed by a third party that has contracted with Publisher for Publisher to provide the Advertising Materials; and (v) the Publisher Properties and any Advertising Materials provided by Publisher for a Campaign, (1) do not and will not violate any applicable law or regulation or codes of practice, (2) do not and will not infringe intellectual property of any third party whether registered or not or registrable or not (including, but not limited to, copyright, database rights, patent, trademark, trade secret or other intellectual property right), (3) do not and will not breach any duty towards or rights of any person, (4) are not and will not be false or misleading, (5) do not and will not contain any viruses, worms, Trojan horses, or any other contaminating or destructive feature, and (6) do not and will not contain or promote any content that is illegal, pornographic, gambling-related, hate-related, abusive, false, fraudulent, deceptive, misleading, obscene, defamatory, unethical, infringing upon intellectual property or other right of another, racially or ethnically objectionable, or otherwise objectionable to ReachYield, in its sole discretion.
(b) ReachYield represents and warrants that (i) it has the full right, power, and authority to enter into and perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which it is bound; and (iii) it shall comply with all applicable laws, rules and regulations in its performance of this Agreement.

6. Confidentiality

Publisher agrees not to (a) use any ReachYield Confidential Information other than the purposes provided hereunder, or (b) disclose any ReachYield Confidential Information without ReachYield’s prior written consent.

7. Intellectual Property

(a) ReachYield or its applicable advertiser owns and retains all rights, title, and interest in and to the Advertising Materials. Title to and ownership of all intellectual property rights of any Advertising Materials provided by Publisher for a Campaign shall be granted to ReachYield, and the creation of such Advertising Materials shall be treated as a “work for hire.” The Advertising Materials are protected by copyright, trademark, or other proprietary rights or laws. Except as expressly stated in this Agreement, ReachYield does not grant any license, express or implied, to the Advertising Materials or any other right, title, or interest to any intellectual property including, without limitation, any of the ReachYield Marks. ReachYield reserves all right, title, and interest in and to its intellectual property. The ReachYield Marks are the property of ReachYield. Publisher shall not use the ReachYield Marks for any purpose without the prior written approval of ReachYield, and then only in accordance with instructions provided by ReachYield.
(b) Publisher agrees that Publisher will not, will not attempt to, nor authorize or permit any third party to (i) reverse engineer, decompile, or disassemble any Application for any purpose, including, without limitation, for purposes of creating of derivative works or similar products, or (ii) use any ReachYield intellectual property or ReachYield Confidential Information to (x) build a product or engage in any service using similar ideas, features, functions or graphics as any ReachYield Application, (y) copy any ideas, features, functions or graphics of any ReachYield Application or Advertising Materials, or (z) consult with or advise any third party on how to engage in any of the foregoing.

8. Disclaimer Of Warranties

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, REACHYIELD DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ReachYield SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE AMOUNT OF ANY PAYMENT OR PROFITS TO BE MADE TO PUBLISHER UNDER THIS AGREEMENT.

9. Limitation Of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN,
(A) REACHYIELD SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY CLAIM FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), OR ANY CLAIM IN TORT, WHETHER OR NOT ARISING IN WHOLE OR PART OUT OF ReachYield’S ACT, OMISSION, FAULT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR REACHYIELD HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), AND,
(B) REACHYIELD’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY REASON WILL NOT EXCEED THE PAYMENTS PAID BY ReachYield TO PUBLISHER UNDER THE IO IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. NO CLAIM MAY BE ASSERTED BY PUBLISHER AGAINST REACHYIELD MORE THAN TWELVE (12) MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITIES STATED HEREIN AND THAT THOSE LIMITATIONS ARE THE ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

10. Indemnification

(a) Publisher agrees to indemnify, defend, and hold harmless ReachYield from and against any claims, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising out of third party claims concerning (i) the Publisher Properties, or (ii) Publisher’s breach of any term of this Agreement.
(b) ReachYield agrees to indemnify, defend, and hold harmless Publisher from and against any claims, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising out of third party claims concerning ReachYield’s breach of any term of this Agreement.
(c) Each party’s obligation to indemnify the other party hereunder will be conditioned upon the indemnified party promptly notifying the indemnifying party in writing of any such claim (however, failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice materially prejudices the indemnifying party’s ability to defend such claim), promptly tendering the control of the defense and settlement of any such claim to the indemnifying party (at the indemnifying party’s expense and with the indemnifying party’s choice of counsel), and cooperating reasonably with the indemnifying party in defending or settling such claim including, but not limited to, providing any information or materials necessary for the indemnifying party to perform the foregoing. The indemnifying party will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the indemnified party without the indemnified party’s prior consent, which will not be unreasonably withheld. The indemnified party will have the right to participate in the settlement or defense of any such claim at its own expense.

11. Miscellaneous

(a) Force Majeure
Neither party shall be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, terrorism, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.
(b) Relationship of the Parties
ReachYield and Publisher are independent contractors and neither party is an agent, representative, partner or joint venture partner of the other.
(c) Entire Agreement
This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, communications, and understandings (whether written or oral) between the parties with respect to their subject matter. No party has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement, any correspondence or communication preceding the execution of this Agreement, or any prior course of dealing between the parties. If there is any conflict between the terms of these Terms and any IO, the terms of the IO will govern and control to the extent of the conflict.
(d) Choice of Law and Venue
This Agreement shall be interpreted and enforced in all respects under the laws of the State of Washington, as applicable to contracts to be performed entirely within the State of Washington. Any litigation arising out of this Agreement will be brought solely and exclusively in the state or federal courts located in Seattle, Washington, and the parties agree that jurisdiction and venue properly lie in such courts and waive any claim that a proceeding in any such court has been brought in an inconvenient forum.
(e) Waiver
Failure by a party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a party’s right to later enforce such provisions. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver.
(f) Severability
If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
(g) Miscellaneous
No amendment to this Agreement will be effective unless it is in writing and signed by both parties. Publisher may not assign or delegate this Agreement, in whole or in part, without the prior written consent of ReachYield, and any such attempt in violation here of is void. Except as specifically provided in this Agreement, notices shall be given in writing and shall be deemed given if delivered by commercial overnight carrier upon receipt thereof (with confirmation of receipt). Notices to ReachYield must be sent to the attention of ReachYield, Legal Department, 2901 Marmora Road, Glassgow, Seattle, WA 98122-1090. The IO may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.

Terms & Conditions

ReachYield Advertiser Master Terms and Conditions

REACHYIELD ADVERTISER MASTER TERMS AND CONDITIONS

Definitions

Campaigns

Payment

Representations and Warranties of Advertiser

Limitation of Liability

Indemnity

Disclaimer of Warranties

Termination

Intellectual Property

Agent

Survival of Obligations

Confidential Information

Publicity

Entire Agreement

Choice of Law and Venue

Force Majeure

Waiver

Severability

Miscellaneous

ReachYield BIDSYSTEM ADDENDUM

Definitions

Additional Representations and Warranties of Advertiser

CUSTOM AUDIENCE ADDENDUM

Definitions

General

Creative Materials

Advertiser Approval

Creative Materials Ownership

Creative Materials Exclusivity

Payment

ReachYield Email Monetization Agreement (CP)

Marketing Services

Revenue Reporting

Proprietary Rights

Equitable Remedies

Third Party Beneficiaries

Indemnification

Representations and Warranties; Limitation of Liability.

Email Publisher Email Guidelines

1. General Email Requirements

2. Opt-out request requirements

3. Other Requirements

Distribution Publisher Terms and Conditions

1. Definitions

2. Campaigns

3. Payment

4. Termination/Survival

5. Representations and Warranties

6. Confidentiality

7. Intellectual Property

8. Disclaimer Of Warranties

9. Limitation Of Liability

10. Indemnification

11. Miscellaneous

Quick links

Useful Links

Contact Us