Indemnity: Both parties will defend, indemnify, and hold harmless each other, and its officers, directors, employees, agents, and affiliated entities (the “Indemnified Parties”) from and against any and all liabilities, losses, damages, claims, and expenses, including reasonable legal fees, that may be incurred or suffered by one or more Indemnified Parties arising out of or related to either parties conduct under this Agreement, or either parties breach of this Agreement, or the untruth of any of the representations and warranties herein, including, without limitation, any breach by Publisher of any Email Marketing Terms set forth herein..
A party seeking indemnification under Section 1 above shall give the other party prompt written notice of the claim for which it seeks indemnification. Failure of the party seeking indemnification to give such prompt notice shall not relieve the other party of its indemnification obligation, provided that such indemnification obligation shall be reduced by any damages suffered by such other party resulting from a failure to give prompt notice hereunder. The party receiving the aforementioned notice shall be entitled to participate in the defense of such claim. If at any time the party receiving such notice acknowledges in writing that the claim is fully indemnifiable under this Agreement, it shall have the right to assume total control of the defense of such claim at its own expense, provided that the party sending the notice shall continue to be entitled to participate in the defense of such claim. If the party receiving such notice does not assume total control of the defense of any such claim, the other party agrees not to settle such claim without the written consent of the party receiving notice, which consent shall not be unreasonably withheld. Nothing contained in this section shall prevent either party from assuming total control of the defense and/or settling any claim against it for which indemnification is not sought under this Agreement.
Cancellation: Either party may cancel this IO with 24 hours notice.
Payment:Payment will be issued within 30 days from receipt of invoice and will be based on final billable numbers provided by Direct Agents following the close of each month. Any actions determined to be fraudulent by advertiser will not be paid. Any actions determined to be incentivized will not be paid, unless expressly authorized in writing before the start of the campaign.
Limitation of Liability. Under no circumstances will Direct Agents, its officers, secretaries or employees be liable to Company under any contract, strict liability, negligence or other legal or equitable theory, for any incidental, indirect, special or consequential damages or lost profits, revenue or data in connection with the subject matter of this agreement, even if either party has been advised of the possibility of such damages and even if such damages are foreseeable.
Non-Circumvention Agreement: Publisher acknowledges and agrees that it shall not, during the term hereof or within six (6) months after the termination of this Insertion Order, directly or indirectly, enter into any business relationship or contract with an advertising client of Direct Agents’ associated with this Insertion Order, or an agent thereof of Direct Agents’ client, for the purposes of referring, or in any way soliciting customers for, or on behalf of publisher or related entity, nor shall publisher solicit or assist any other person to solicit any person, business or entity to withdraw, curtail or cancel its business dealings with Direct Agents: and publisher shall not commit any other act or assist others to commit any other act which might in any fashion injure the business of Direct Agents. This Section excludes advertising clients contracted by publisher within the last six (6) months of this agreement.
Commissions Post-Campaign: Notwithstanding the foregoing provision and any remedies at law or in equity that Direct Agents may have at its disposal due to publisher’s violation of the Non-circumvention provision above, if publisher elects to renew a media campaign(s), placed by Direct Agents under this Agreement, without the use of Direct Agent’s services, within six (6) months after completion of the initial campaign and for the term of the media campaign thereafter, Advertiser hereby agrees to pay Direct Agents its commission for lost revenues for such media campaign(s) equal to the margin obtained by Direct Agents during the initial advertising campaign.
Insurance Requirements: Each party will be responsible for obtaining and maintaining suitable levels of insurance, including, without limitation, general liability, product liability and worker’s compensation coverage. If a party does not maintain insurance, it does so at its own risk. If Publisher maintains insurance for any liability arising out of the items covered by the Email Marketing Terms herein, it shall use its best efforts to have Direct Agents added as an additional insured on such insurance policies.
Severability: If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.
Statute of Limitations: The parties agree that any action in relation to an alleged breach of this Agreement shall be commenced within one year of the date of the breach, without regard to the date the breach is discovered. Any action not brought within that one year time period shall be barred, without regard to any other limitations period set forth by law or statute.
Governing Law: The laws of the State of New York shall govern this Agreement. The parties agree that any claims, legal proceeding or litigation arising in connection with this Agreement will be brought solely in the trial courts of Manhattan County, New York and the parties consent to the jurisdiction of such courts.
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Email Marketing Terms:
By signing this Agreement, the publisher agrees that it abides by all applicable federal and state guidelines regarding commercial email marketing, including the following:
Advertisement Label: Each commercial e-mail must contain a clear and conspicuous notice that the message is an advertisement or a solicitation, unless a recipient has expressly consented to its receipt.
Opt-Out Notice: Each commercial e-mail must display conspicuously a clear notice which details how, whether through a return e-mail address or another Internet based tool, recipients can request not to receive further messages from the sender. The opt-out mechanism described in each commercial e-mail must be effective for at least 30 days following the original date the e-mail is transmitted. If a recipient requests not to receive commercial e-mails, the sender or any person acting on behalf of the sender may not, more than 10 business days after receipt of the opt-out request, send or assist another in sending to that recipient any e-mail that falls within the scope of the opt-out request. Once an opt-out request is received from a recipient of a commercial e-mail, it is also unlawful to disclose to any third party such recipient’s e-mail address.
Valid Postal Address: Each commercial e-mail must include a valid physical postal address of the sender.
Include Accurate and Non-Misleading Headers: Publisher will not send an e-mail with header information (e.g., sender name and e-mail address, domain name, and subject line) that is materially false or misleading, i.e., altered or concealed in a manner that impairs the ability of others to identify, respond to, or locate the sender or to investigate the alleged violation. This includes sending an e-mail with header information that is technically accurate, but which was obtained by false pretenses.
No Deceptive Subject Headings: Publisher will not send a commercial e-mail if it knows (or even if such knowledge may be implied on the basis of objective circumstances) that the message’s subject heading is likely to mislead recipients as to the contents or subject matter of the message.
Usage of Suppression Files: Publisher will scrub their email distribution list against suppression files provided by Direct Agents, at least once every 10 days. Publisher understands that suppression lists are provided solely for the purpose of scrubbing and are the sole property of the advertiser and takes sole responsibility for any improper usage or handling of all suppression files it receives.
If publisher fails to follow these email-marketing terms when conducting an email campaign on behalf of Direct Agents, publisher will be solely responsible for any and all damages that may result. In such a case, Direct Agents and Advertiser will have no responsibility or obligation to the publisher in any form.
This Agreement and the exhibits attached hereto contain the entire agreement of the parties with respect to the subject matter of this Agreement, and supersede all prior negotiations, agreements and understandings with respect thereto. This Agreement may only be amended by a written document duly executed by all parties.