EMX Publisher’s Agreement

This bRealTime Publisher’s Agreement (“Agreement”) is entered into by EMX Digital, LLC (“EMX” or “bRealTime”), a subsidiary of Engine Media, LLC, and the entity (“Publisher”) that accepts this Agreement by signing an insertion order (“IO”). This Agreement governs advertising delivered through Publisher’s Web site(s) or platform(s) (the “Publisher’s Site(s)”).

EMX and Publisher agree as follows:

  1. EMX plans advertising campaigns and buys advertising media on behalf of its clients;
  2. Publisher sells certain advertising products and services that it is willing to make available in support of EMX’s clients’ advertising campaigns; and
  3. Publisher desires to sell and EMX desires to purchase certain of Publisher’s products and services in accordance with the terms set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows:

Definitions

  1. “Advertising Material” means the text, graphics, logos, designs, trademarks and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links, pop-ups, and pop-unders is created by an advertiser.
  2. ”Advertiser(s)” means one or more customers of EMX which create the Advertising Material, and authorizes EMX Interactive as its agent to include it on the Publisher’s Site(s).
  3. “Approved Monthly Delivery” means the amount of inventory to be delivered for each calendar month of the campaign as stated in the Order.
  4. “Approved Monthly Spend” means the amount of money that EMX sets as spending limit, and for which it will be liable for any calendar month if specified under a particular Order.
  5. “EMX HTML Insertion Code” means the code in which Publishers are permitted to use Advertising Material delivered to the Publisher’s Site(s).
  6. “EMX Network” means the advertising network owned and operated by EMX.
  7. “Impressions” means the number of times Advertising Material is served to a person visiting the Publisher’s Site(s).
  8. “Order” means an insertion order that is submitted by EMX and is accepted by Publisher, or an online order via the Internet, which is a proposal that is submitted by Publisher in response to a request for proposal and is accepted by EMX.
  9. “Publisher Earnings” and “EMX Earnings”. “Publisher Earnings” means the total revenue EMX generates by running advertising campaigns for Publisher using the Advertising Materials less “EMX Earnings” and subject to the Total Spend that may be established under an Order. “EMX Earnings” are calculated at the campaign level at the sole and absolute discretion of EMX. EMX evaluates each advertising campaign and makes relative earnings calculations based upon a number of factors including the type of campaign metric (e.g., CPM, CPC, CPA), the performance of the campaign, technology costs, and other factors relating to the campaign, the performance of Publisher’s site(s) and EMX’s Network as a whole.
  10. “Total Spend” means the maximum amount of money for which EMX will be liable under the Order.
  11. “Unique Click” means the number of times, as recorded by EMX’s server, a person visiting Publisher’s Site(s), as identified by cookie or IP address, clicks on Advertising Material, provided however, that a click on Advertising Material by a particular visitor shall only be counted as a Unique Click once every 24-hour period.

1. Order, Delivery, and Adjustments.

1.1. Relationship. From time to time, the parties may negotiate the terms of Orders under which Publisher will deliver Advertising Material for advertising campaigns to its Site(s) for the benefit of each Advertiser.

1.2. Orders. Each Order shall specify at the placement level: (a) the types of inventory to be delivered (e.g., impressions, clicks, or other desired actions); (b) the prices for such inventory; and if specified by EMX (c) the Total Spend. Using such factors, the Order shall set forth the Approved Monthly Delivery and the Approved Monthly Spend. Publisher’s delivery of the first Advertising Material as specified in an Order shall be deemed Publisher’s acceptance of the Order’s specifications, terms and conditions, including any payment rates.

1.3. Publisher’s Delivery. Publisher shall ensure reasonably even delivery of Advertising Material based on the monthly contracted amount as stated in the Order. Publisher’s over-delivery of Advertising Material shall not relieve Publisher of such obligation, nor obligate EMX to pay more than the total monthly contracted amount as stated in the Order. In the case of under delivery, EMX shall have the right to decrease the Approved Monthly Spend for the current month, as well as for all remaining calendar months in the campaign, to an amount that would result from Publisher’s current actual rate of Delivery. The decrease to the Approved Monthly Spend(s), and a corresponding decrease to the Total Spend, shall be effective as of the date of the request by EMX. In any event, Publisher is obligated to deliver evenly based on the most recent Order.

1.4. Adjustments to Orders. The parties may make adjustment to Orders, via revised insertion orders, as that term is generally understood in the industry, when signed by both parties or when accepted via e-mail. These adjustments may include changes in the price at the placement level, changes in the inventory desired at the placement level, or changes in the contracted amount at the placement level.

2. Invoicing and Payment.

2.1. Payment. Within 60 days after the last day of each calendar month for a specific campaign, EMX will pay Publisher its Publisher Earnings for Advertising Material actually delivered by Publisher to each of Publisher’s Site(s) approved by EMX during the applicable calendar month and for which EMX has been paid by the Advertiser in accordance with Section 3.2 herein, subject to the applicable Order’s specifications, terms and conditions. Publisher acknowledges that EMX bills its Advertisers, and pays its Publishers, based on actual delivery. Additionally there is a minimum threshold on publisher payments in the amount of $100 dollars and any publisher below this threshold will receive payment when the cumulative reaches the minimum.

2.2. Liability for Publisher’s Revenue. Publisher understands and agrees that EMX acts solely as an agent for the Advertisers; and that EMX shall only be liable to Publisher for Publishers Revenue based on payments from Advertisers that it has received without restrictions that constitute immediately-available funds to EMX (hereinafter called “Cleared Funds”). EMX agrees to make every reasonable effort to bill, collect and clear payment from the Advertisers on a timely basis. EMX, reserves the absolute right not to make any payments if the Publisher violates any of the terms and conditions set forth herein. EMX shall not pay for clicks generated from EMX house banners. Clicks from EMX house banners will result in no revenue for Publisher.

2.3. Invoicing and Payments.

2.3.1. If Publisher Submits an Invoice. Publisher shall ensure that invoices display Advertisers name, Media Plan number, and the time period being billed. Publisher shall invoice each campaign separately on a calendar monthly basis, in the month following delivery. Invoices shall be based on actual delivery amounts, not contracted numbers. All invoices received by EMX will be considered final and correct after 60 days of receipt unless EMX disputes the accuracy of an invoice by a written notice to Publisher, in case the dispute shall be resolved as provided herein.

2.3.2. If Publisher Does Not Submit an Invoice EMX makes its own final determination of the Publisher’s due balances on the first day of the calendar month after previous calendar month. This determination shall be calculated based on the amount of traffic as counted by the EMX tracking system, multiplied by the fixed rate or revenue share percentage, as agreed to in the Order and as it is displayed in the publishers information within the EMX system. Publisher shall notify EMX in writing that it disputes the calculation within 75 days after the last calendar day of the month in question. All EMX calculated payments after that period shall be deemed to be correct and final.

2.4. Disputes.

2.4.1. If Publisher issues an invoice. If EMX disputes all or a portion it, EMX shall pay the part of the specific Publisher’s invoice that is not disputed. The disputed part of the invoice shall be negotiated between the parties until agreement is reached and EMX shall then pay the agreed upon price of the disputed amount.

2.4.2. If Publisher does not issue an invoice. If Publisher disputes all or part of a balance calculated by EMX according to its tracking system, EMX shall pay the undisputed part, and the disputed part shall be negotiated between the parties until agreement is reach, and EMX shall then pay the agreed upon amount

2.5. Taxes. EMX assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the EMX Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence thereof. EMX shall provide Publisher with appropriate tax information, including earnings on Form 1099. Publisher residing in the United States agree to provide their Social Security number or Federal Employee Identification Number to EMX for tax reporting purposes. In no event will payments be made on accounts that have not provided proper tax identification information. Such information will be used for no purpose other than for tax reporting purposes. International Publishers may be asked to complete appropriate forms for tax purposes.

3. Advertising Materials.

3.1. Linking and Trafficking Guidelines. Prior to displaying the first Advertising Materials specified in an Order, EMX shall provide Publisher with linking instructions, URL, banner, and alternative text for the Advertising Material. EMX may make changes to any such Advertising Material upon 48 hours’ notice, via e-mail, telephone or fax. Publisher shall process such changes so as to deliver the Advertising Material correctly, clearly, and at the times and frequencies specified by EMX. In the event Publisher fails to run the Advertising Material properly, EMX may require appropriate delivery of additional Advertising Material and/or a proportional or total reduction in amounts payable.

3.2. Delivery of Advertising Material. EMX shall provide all Advertising Material to Publisher via servers at EMX. EMX shall issue Orders to Publisher, and shall provide Publisher with appropriate linking instructions to the EMX servers. Publisher shall obtain the Advertising Materials from the EMX services at the time of delivery the Advertising Materials for a specific advertisement. If Publisher is unable to obtain the Advertising Materials from the EMX servers on a consistent basis, Publisher shall cease delivering Advertising Material and shall contact EMX promptly, but in no event more than one business day after the problem first occurred. Publisher shall not resume the display of Advertising Materials until EMX directs Publisher to do so. In the event of a persistent outage of the EMX servers, EMX may, at its option, provide Publisher with the Advertising Materials directly, and may direct Publisher to serve the Advertising Materials from its servers.

3.3. bRealTime HTML Insertion Code. Publisher shall place the bRealTime HTML Insertion Code on all appropriate pages within its Site(s). Publisher shall not alter, sell or disclose the bRealTime HTML Insertion Code in any way without EMX’s prior written consent. The bRealTime HTML Insertion Code for Advertising Material may not be used on a web page other than one located at an approved Site and may not be distributed or submitted to any newsgroup, e-mail distribution list, chat room, guest books, or other location which would result in the execution of such code without a bona fide visit to an approved Web Site.

3.4. Modification of Advertising Material. Advertising Material must not be modified from original format without consent from EMX. Publisher agrees to use the Advertising Material provided for displaying not more than one ad unit per page view. Advertising Material cannot be placed in email messages. Publisher cannot alter, copy, modify, take, sell, reuse, or divulge any computer code for the Advertising Materials, except as is necessary to partake in the EMX Network, provided, however, with the prior approval of EMX, the Publisher may, in certain instances, modify the Advertising Material computer code for purposes of inserting certain pre-approved language above or below the Advertising Material. Requests for language approval should be sent to [email protected] . If Publisher violates this provision, EMX, may, at its option, either reduce or eliminate any and all payments due hereunder, and/or terminate this Agreement as provided herein.

3.5. Recording of Service Counts. EMX shall have the sole responsibility for calculation of statistics, including Impressions and click-through numbers. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes. Statistics shall be available to Publisher online at http://www.brealtime.com. Publisher understands that EMX’s online statistics may not be 100% accurate and that EMX may make adjustments to Publisher’s online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., bonuses) and statistical errors. In the event that coding on Publisher’s Site(s) generates substantial number of erroneous impression due to a technical problem such as server malfunction, coding alteration or a mistake in entering code, Publisher agrees to respond to the e-mail generated by EMX technical support within 48 hours. If Publisher does not respond to this alert, EMX reserves the right to (a) withhold payment on all Impressions and clicks delivered after the 48-hour period has expired, or (b) not show any revenue-producing Advertising Material on the relevant Site(s).

3.6. Fraudulent Impressions & Click Spam. Any methods and or means direct or indirect, intentional, accidental, incidental that artificially and/or fraudulently inflate the volume of impressions or clicks is strictly forbidden. Final counts of impressions or clicks and revenue earned, and amounts to be paid to publisher will be decided solely on the basis of reports generated by EMX’s advertising systems/ad server(s) and the assessment of publisher data by the EMX Policy Team. These prohibited methods include but are not limited to: framing an ad-banner’s click-through destination, auto-spawning of browsers, blind text links, running ‘spiders’ against the Publisher’s own website, automatic redirecting of users, pop-up windows or any other technique of generating automatic or fraudulent (as determined by EMX, acting reasonably, or based on industry practices) click-throughs and/or impressions. Advertising Material may not be placed on a pages which reload automatically. Publisher may not require users to click on Advertising Material prior to entering a Web Site or any area therein or provide incentives of any nature to encourage or require users to click on Advertising Material. Publisher’s clicks-throughs of any link other than EMX’s Advertising Material, or use of any other means of artificially enhancing click results shall be a material breach of this Agreement, and upon such occurrence, EMX may terminate this Agreement effective upon delivery of notice and at its sole discretion withhold any payments due to publisher. Such determination and action is at the sole discretion of EMX and is not in lieu of any other remedy available at law or equity. EMX’s ad server(s) will be the official counter for determining the number of Advertising Material delivered under an applicable Order, and amounts payable under this Agreement. Additionally EMX may withhold amounts relating to advertiser chargebacks or credits from payment to publisher if EMX and EMX Policy Team in its sole reasonable discretion, believes the performance related to them is fraudulent or invalid in nature, or if EMX was charged or credited back in their respect by any customer. Payment amounts displayed in EMX reporting systems may be adjusted at any time and may not reflect final payment to publisher as per adjustments made hereunder. EMX may withhold payment to Publisher even if there is no advertiser chargebacks.

3.7. Ad Placement. 728×90 leaderboard, 120×600 skyscraper, and 160×600 wide skyscraper creative must be placed above the fold on an 800×600 pixel screen (within 500 pixels of the top of the webpage) so they are viewable without scrolling; 300×250 medium rectangles must be placed above the fold on an 800×600 pixel screen (within 500 pixels of the top of the webpage).

4. Eligible Site(s).

4.1. EMX reserves the absolute right to refuse in its sole discretion to affiliate with any Publisher. The following are examples of sites that are not eligible for participation:

  • Sites which contain material that infringes the rights of others (including but not limited to copyright and other intellectual property rights) or which promotes copyright piracy (i.e., unauthorized MP3s, roms, ‘warez’, emulators, or cracks, etc.).
  • Sites with pornography, adult content, sexual or erotic material or sites that contain links to such content.
  • Sites with gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm.
  • Sites promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.).
  • Sites that participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam).
  • Sites promoting any type of illegal substance or activity (i.e., how to build a bomb, hacking, ‘phreaking’, etc.).
  • Sites with illegal, false or deceptive investment advice and money-making opportunities
  • Sites that provide incentives of any nature to require or encourage users to click on ad banners (i.e., charity, sweepstakes, etc.).
  • Sites that are under construction or incomplete.
  • Sites with extremely limited audiences or viewership.
  • Sites with any type of content reasonable public consensus deems to be improper or inappropriate.
  • Sites that contain any content violating Federal privacy laws, including the Children’s Online Privacy Protection Act.

At any time EMX may investigate any Site for violation of this Agreement. EMX regularly performs compliance audits. If EMX determines that Publisher’s Site(s) includes any undesirable content, EMX may discontinue the Ad campaign upon notice, and Publisher shall immediately cease delivering Advertising Material on such Site(s). In no event, will EMX or its Advertisers be obligated to pay for Advertising Material delivered through Sites containing undesirable content after Publisher’s receipt of such notice from EMX.

5. Minimum Traffic.

EMX reserves the right to terminate this Agreement immediately should, according to EMX’s statistics, either (a) the number of Impressions delivered by Publisher total less than 30,0000 unique users per month, or (b) the unique click-through rate on Advertising Material delivered to Publisher’s Site(s) equals 80% less than the average click-through rate of said Advertising Material for all web sites in the EMX Network for any 7 consecutive calendar day period; or (c) the amount of United States-based traffic to Publisher’s Web Site (determined by the IP address of visitors to Publisher’s Web Site) equals less than 50% of the total traffic to such site (as determined by the total number of Impressions delivered by Publisher) (the “Minimum Requirements”); provided, however, should EMX exercise its rights pursuant to this Section 5, Publisher shall be entitled to receive payments under Section 3 herein generated up to and including the date of termination, as long as payments equal at least $50 at the date of termination, and amounts under $50 shall be forfeited. When calculating the amount due to Publisher under the previous sentence, any payments for a particular month of less than $1.00 will be forfeited. Notwithstanding the foregoing, prior to making any payment to Publisher, EMX reserves the right to (i) demand make-goods for any short-fall of the Minimum Requirements, which make-goods shall equal the number of Impressions necessary to achieve United States-based traffic of at least 50% relative to the total traffic to Publisher’s Web Site; OR (ii) reduce payment to Publisher accordingly.

6. Representations and Warranties.

Publisher represents and warrants to EMX that:

6.1. All content, products, and services on the Site(s) are legal to distribute, that it owns or has the legal right to use, and will not infringe, any and all copyrights, trademarks, patents or other proprietary rights;

6.2. The Site(s) do not, and will not during the term of this Agreement, contain any material described in Section 4 of this Agreement;

6.3. The Site(s) are free of any “worm”, “virus” or other device that could impair or injure any person or entity;

6.4. It is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply; and it will conduct its business in compliance with all applicable laws, rules and regulations; and

6.5. It has full legal power and authority under its organizational documents to enter into this Agreement and to perform the obligations contained herein; and the execution of this Agreement and the performance of its obligations by Publisher will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which Publisher is a party or subject.

EMX represents and warrants to Publisher that:

6.6. It has full legal power and authority under its organizational documents to enter into this Agreement and to perform the obligations contained herein; and the execution of this Agreement and the performance of its obligations by EMX will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which EMX is a party or subject.

7. Campaign Discontinuance.

EMX has the option, in its sole discretion, to discontinue any Ad campaign or obligation under an Order, with or without cause, by giving a notice via e-mail, telephone or fax, to the Publisher’s authorized representative that will be effective immediately on the date when it is sent. If EMX elects to discontinue any Ad campaign or obligation under any Order, all unfulfilled contractual commitments subsequent to notice shall become null and void, and EMX shall pay Publisher only for Advertising Material delivered up to the date of the notice period so long as such Advertising Material are delivered evenly, or at a rate consistent with the rate anticipated in the Order. EMX shall have no obligation to pay for Advertising Material delivered by Publisher prior to the date of the notice that exceeds the number specified in the original order or that vary significantly from the rate of Delivery prior to notice of discontinuance.

8. Term and Termination

8.1. Term. Subject to the early termination rights of either party herein, the term of this Agreement shall be one (1) year from the date first written above; and it shall renew automatically for subsequent one-year periods unless either party notifies the other at least 30 days before the end of the then-Term that it does not wish to renew the Agreement.

8.2. Termination by Either Party. Notwithstanding Section 8.1 above, either party may terminate this Agreement at any time for one of the following reasons for any reason whatsoever, upon 30 days written notice to the other party. Notice may be provided via e-mail or any other public means and will be effective 30 days after its transmission.

8.3. Termination by EMX. Notwithstanding Sections 8.1 and 8.2 above, EMX shall also have the right to terminate this Agreement because of either of the following reasons: Immediately upon written notice of because Publisher has breached Section 3.6 herein; or Upon the time periods specified in Section 7 herein upon a campaign discontinuance in accordance with that Section.

8.4. Consequence of Termination. Upon receipt of such termination notice, Publisher agrees to immediately remove EMX’s HTML code for serving Advertising Material from its Site(s). In the case of termination, provided that Publisher has an outstanding account balance equal to or greater than $50, EMX will pay Publisher all legitimate moneys due during the next billing cycle.

9. License and Intellectual Property.

EMX Interactive shall not use the trade names or trademarks of the other party or Advertisers without prior written approval from the party owning such name or mark.

10. Privacy

10.1. Privacy Policy. Each party shall include conspicuously on its Site(s), a privacy policy that describes how such party collects, uses, stores and discloses users’ personal data if any is collected, including e-mail addresses, and instructs users how to opt-out of such practices. Publisher’s privacy policy shall disclose that third party advertisers may place cookies on the browsers of visitors to Publisher’s Site(s).

10.2. Privacy Representations and Warranties. Each party warrants to the other that, during the term of this Agreement, it shall comply with all applicable laws and regulations (including but not limited to laws governing privacy, and data protection). Publisher warrants that it shall comply with the Self-Regulatory Principles Governing Online Preference Marketing promulgated by the Network Advertising Initiative (available at http://www.networkadvertising.org/aboutnai_principles.asp).

11. Confidentiality.

EMX may disclose to Publisher the names of EMX’s Advertisers (“Client List”); and Publisher agrees that the Client List is sensitive and highly confidential information that it shall use solely for its performance under this Agreement, and that it and its officers, employees, directors, members, agents and representatives shall not disclose it to any other party for any purpose without the prior written consent of EMX. Publisher shall ensure that each of the persons or parties in the previous sentence have signed confidentiality agreements with Publisher consistent with the aforesaid sentence before it may disclose the Client List to them. Notwithstanding the previous two sentences, however, Publisher may disclose to any third party the existence of its relationship with EMX; but it cannot disclose the Client List or the existence or nature of EMX’s relationship with any Advertisers included in the Client List. Publisher’s obligations under this paragraph shall continue in perpetuity following the date of termination of this Agreement.

12. Indemnification.

The Publisher agrees to indemnify and hold EMX and its affiliates, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any and all claims and lawsuits for libel, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation of the Publisher in the EMX Network, (ii) operation of the Publisher’s Site(s) submitted to EMX for participation in the EMX Network or (iii) otherwise arising from Publisher’s relationship with EMX. The Publisher also agrees to indemnify EMX for any legal fees incurred by EMX while exercising its rights under this Section.

EMX agrees to indemnify and hold Publisher and its affiliates, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, expenses, losses, damages and attorney fees arising from any and all claims and lawsuits for libel, slander, copyright, and trademark violation as well as all other claims resulting from (i) the participation of the Publisher in the EMX Network, (ii) operation of the Publisher’s Site(s) submitted to EMX for participation in the EMX Network or (iii) otherwise arising from Publisher’s relationship with EMX. EMX also agrees to indemnify Publisher for any legal fees incurred by Publisher while exercising its rights under this Section.

13. Disclaimers, Exclusions and Limitations.

13.1. Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, EMX MAKES, AND HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THESE TERMS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

13.2. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL EMX BE LIABLE TO PUBLISHER WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT EMX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THESE TERMS, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL EMX’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS EXCEED THE PAYMENTS TO THE PUBLISHER HEREUNDER DURING THE PRECEDING TWELVE (12) MONTHS FROM THE DATE WHICH THE LIABILITY AROSE.

14. General

14.1. Inconsistency with Order. In the event of any inconsistency between an Order and this Agreement, the terms of the Order shall prevail.

14.2. Governing Law, Jurisdiction and Venue. This Agreement and all Orders shall be governed by the laws of the State of New York, without regard for the conflict of law principles thereof. The Federal and State Courts located in New York County, NY shall be the sole venue to hear controversies arising from or related to this Agreement, and each party consents to the personal jurisdiction of those courts.

14.3. Assignment. Any assignment, transfer or delegation by Publisher of its rights or duties hereunder will be governed by this Agreement, subject to the parties’ termination rights hereunder.

14.4. No Prior Agreements. This Agreement, together with all fully-executed Addenda, attachments and exhibits attached hereto, and all proper Orders, contains every obligation and understanding between the parties regarding the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements and understandings, if any, regarding the subject matter hereof.

14.5. Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices will be sent to the contact as noted on the IO.

14.6. Severability, Rights Cumulative. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.

14.7. Heading. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.