Online advertising SERVICE Agreement FOR Publisher

 

Subject to Insertion Order:

This Agreement, effective as of the Effective Date provided in the Insertion Order, is entered into by and between Flat Ads and the Publisher listed on such Insertion Order.

  1.     Definitions

“Action(s)” means the fulfillment of certain predefined actions by End Users in connection with the Ads.

“Ad Inventory” means the advertising space on Publisher Sites that Flat Ads and Publishers make available for Advertisers to place and display Ads.

“Ad(s)” means an advertisement represented by text, graphics, audio or video, or by rich media such as movement, animation, flash or other promotional activity provided by Advertisers.

“API” means Publisher’s application programming interface, and its related tools and information, which will interact with Flat Ads.

“CPC” means the payment calculation method based on the effective click by the End User. Each effective click from an End User, count as an effective CPC (Advertising fee = number of CPC * unit price). Repetitive clicks from the same terminal shall be count as 1 (one) click. 

“CPI” means the payment calculation method based on the effective installation by the End User. An effective installation means the installation of Product or the third-Party advertiser’s products on the mobile device of End Users.

“CPM” means the payment calculation method based on every thousand displays of the Product or third-Party advertisement.

“CPT” means the payment calculation method on the basis of a fixed price within a period of time. Advertiser is entitled to change the UI, interface, user experiences of its Product, and, given this circumstance, Publisher shall ensure the traffic quality, including but not limited to maintaining a resembling advertising place on Publisher’s platform.

“CPA” means the payment calculation method based on the effective action by the End User. An effective action means the registration of Product or the third-Party advertiser’s products on the mobile device of End Users.

“Demand-Side Platform” or “DSP” means online advertising platform, including all related technology, software, tools and infrastructure, that allows Clients to purchase Ad Inventory delivered by SSP to manage multiple ad exchange and data exchange.

“End-User” means any visitor to, or user of, any Publisher Site accessed through a mobile device.

“Flat Ads Services” means the digital media services provided by Flat Ads in connection with distributing and/or promoting and/or displaying the Ads or as otherwise agreed by the Parties in connection with the fulfillment of the Advertiser.

“Network” means Flat Ads’s proprietary platform, system and related tools that enable an Advertiser to purchase inventory and make the Ads available for distribution and/or promotion through the Network. At the same time, the Network allows Publisher to receive, download and make available Ads for presentation to its End-Users on Publisher Websites.

“Publisher Site(s)” means the mobile websites, applications, portals, games, or devices managed by Flat Ads on behalf of Publishers on which the Ad Inventory is located.

“Supply-Side-Platform” or “SSP” means a supply side platform that enables DSP to "plug into" exchange and to make their inventory available for the purpose of delivering an advertisement.

  1.    Scope of cooperation
  1.       Services. Publisher agrees to use, and Flat Ads agrees to make available, the Network during the Term in order to receive, download and make available Ads from Advertiser to Publisher for use on Publisher Websites, Internet-powered applications, mobile, smart phone, tablet and other Internet-accessible material according to the terms and conditions of this Agreement and/or any additional limitations or restrictions provided in connection with the relevant Ads. Publisher will be solely responsible for the marketing and distribution activities used by it in connection with the distributing and/or displaying the Ads, and for any costs or expenses connected therewith.
  2.       Updates. Flat Ads reserves the right to make any updates to the Network (“Updates”). In the event such Updates are mandatory for Publisher to continue using the Flat Ads Services, Publisher shall promptly incorporate and utilize the Updates or Publisher may lose access to the Flat Ads Services.
  3.       Availability of Network. Publisher understands and agrees that from time to time the Network may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Flat Ads may undertake from time to time; or (iii) causes beyond the control of Flat Ads or which are not reasonably or digital foreseeable by Flat Ads, including, without limitation, interruption or failure of telecommunication transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Sites or interfaces, Network congestion or other failures.
  4.       Publisher Site Requirements. Publisher acknowledges that each Publisher Site must meet the following criteria: (i) Publisher Site is permanently available to End-Users and meets industry standard technical and graphical expectations; (ii) Publisher either owns or is entitled to use the content displayed on which the Ad is made available to End-Users; (iii) Publisher Site does not violate any applicable laws or regulations, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, criminal laws, spamming, privacy, obscenity, or defamation). Publisher agree that it will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party; (iv) Publisher Site does not contain content that is defamatory, violates any rights of privacy or publicity or constitutes a misrepresentation; (v) Publisher Site does not produce or contain adult content; (vi) the content of Publisher Site does not and will not infringe any Intellectual Property Rights or other proprietary rights; (vii) Publisher does not engage in, promote or knowingly facilitate activities such as pirating, hacking or any other activities which are illegal; and (viii) Publisher operates and maintains an efficient “notice-and-take-down” mechanism and policy that complies with applicable law in respect of unlawful activity or content contributed to Publisher Site without Publisher’s knowledge or awareness of its unlawfulness; Publisher agrees that if it uses the Network to use the Service, Publisher will protect the privacy and legal rights of individuals and comply with the General Data Protection Regulation (GDPR).
  5.       No Modification of Ad. Unless expressly permitted otherwise, Publisher shall not edit or modify the Ad in any way, including without limitation re-sizing, altering, and changing the Ad. Publisher will display the Ads in accordance with all applicable specifications, limitation and restrictions. Flat Ads may change or revise the content that is posted in the Network at any time, in its sole discretion, and Publisher agrees to use only the most recent version of the content that is posted on the Network.
  6.       Fraud and Deception. Although Flat Ads has no obligation to monitor Publisher’s use of Flat Ads’s Services, Flat Ads reserves the right to and may perform audits of Publisher’s use of the Flat Ads Services. Publishers that commit fraudulent activities will not be entitled to any compensation. Additionally, Flat Ads reserves the right to disclose details relating the fraudulent Actions, including the identity of the violating Publisher without further notice. All proceeds from accounts with fraudulent activity will have to be refunded to Advertisers. The aforesaid audit rights will not be deemed to impose any obligations upon Flat Ads to monitor and/or audit your use of the Flat Ads Services. Fraudulent Actions shall be defined as Actions generated or enhanced through deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person. Publisher shall compensate Flat Ads if Flat Ads suffers losses due to Publisher’s Fraud or Deception.
  7.       Use in Accordance with Applicable Law. Publisher acknowledges that all marketing activities performed pursuant to this Agreement are in compliance with all applicable international, federal, and state laws, rules and regulations including, but not limited to the CAN-SPAM Act of 2003, as amended from time to time (“CAN-SPAM”), Canada’s Anti-Spam Legislation, as amended from time to time (“CASL”), the Federal Trade Commission Act, the Federal Communications Act, the Telephone Consumer Protection Act, as amended from time to time (“TCPA”), and the Children Online Privacy Protection Act, as amended from time to time (“COPPA”) and the General Data Protection Regulation (“GDPR”) . If Publisher is found to be in violation of any applicable law, Publisher may be immediately suspended from the Network and this Agreement may be terminated without notice to Publisher.
  8.       Reporting. Flat Ads shall provide Publisher with access to tracking and reporting tools. Tracking details may not be available on a real-time basis for all Advertisers and there may be reporting delays regarding certain Actions or Flat Ads Services and/or Advertisers.
  1.    Grant of Rights and Licenses
  1.       Flat Ads License to Publisher. Subject to the terms and conditions of this Agreement, Flat Ads grants Publisher during the Term a revocable, limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Flat Ads Services for the purpose of offering for sale the Ad Inventory, in accordance with the policies and requirements specified by Flat Ads. Except as expressly provided herein, Publisher shall not license, sublicense, sell, resell, lease, transfer, reverse engineer, decompile, disassemble, assign, distribute, or otherwise exploit or make available the Flat Ads Services (in whole or in part) to any third party without the prior written approval of Flat Ads, except to the extent that such restrictions are expressly prohibited by applicable law. Any attempt to sublicense, resell, transfer, or assign shall be void and shall result in termination of this Agreement and be subject to reasonable compensation at the sole discretion of Flat Ads. The Flat Ads Services shall be accessed only by authorized persons and employees of Publisher.
  2.       Flat Ads Ownership. As between Flat Ads and Publisher, Flat Ads owns all rights, titles, and interests in the Flat Ads Services, including, without limitation: any and all intellectual property rights therein; licenses, modifications, or derivative works; software, databases, and any and all data or information shared with Publisher.

4.   General Provisions regarding Fees

  1.       General. Payment shall not be made until at least one thousand U.S. Dollars ($1000) is payable to Publisher. In case that Publisher requests a payout less than $1000, Publisher shall bear the bank fees charged by both payment bank and receiving bank.
  2.       Costs; Taxes. All amounts payable hereunder are inclusive of any value added tax (VAT), use or sales taxes, or similar taxes. Except for taxes on Flat Ads’s income, Publisher agrees to pay all applicable taxes or charges imposed by any government entity in connection with Publisher’s use of the Flat Ads Services, including but not limited to VAT/GST, Sales taxes, withholding tax.
  3.       Currency. Any and all payments shall be made exclusively in U.S. Dollars. If Publisher requires payment in other currencies, the exchange rate will be the exchange rate at the time of payment by the issuing bank of the payment version.
  1.    Privacy and User Data
  1.       Data Privacy. Each Party agrees to comply with its own privacy policy, which shall describe all material ways that the Party collects, uses, and shares data, and with all applicable laws, rules, regulations, and industry self-regulations as each of the foregoing may change from time to time (“Relevant Privacy Regulations”). Each Party agrees to post on its respective website its privacy policy, which shall comply with the Relevant Privacy Regulations. Publisher agrees that its privacy policy shall have a link to a functional End-User opt-out link that enables End-Users to opt out of receiving interest-based advertising through an industry-wide portal, and it shall contractually require its Advertisers to post a privacy policy that complies with the Relevant Privacy Regulations and contains a functional End-User opt-out link. Where Flat Ads or DSP passes to Publisher a signal, flag, or integer that indicates an End-User’s advertising preference regarding receipt of interest-based advertising (i.e., based on Android or Apple device settings), Publisher shall respect that advertising preference.
  2.       Data Ownership. Publisher and Flat Ads understand that as between the Parties, each Party owns all data such Party collects. Such data includes without limitation: information provided by End-Users in response to an Ad and any reports created, compiled, analyzed, or derived by a Party with respect to such End-User information, including (as to Flat Ads) any information collected or received through an API or SDK. Flat Ads has the right to collect, use, disclose, and transfer such data for any purpose which is not inconsistent with Flat Ads’s Privacy Policy.
  3.       Collection, Storage, and Use of Data and Confidentiality Obligation. Under the terms of this Agreement, any Data shall be treated as Confidential Information, and Publisher is allowed neither to store nor to use any of such Data except for the purposes of performing its obligations under this Agreement. Further, Publisher understands that any Data received by Publisher from Flat Ads in connection with the use of the Flat Ads Services shall be exclusively limited to the use solely as agreed and permitted herein and exclusively for the purposes of this Agreement.

Publisher shall refrain from using the Data for the purposes of creating divisions or segments regarding or constituting End-User profiles and/or End-User targeted segments. Publisher’s collection, use, and disclosure of End-User Data in connection with or resulting from its use of the Flat Ads Services must strictly comply with the Children's Online Privacy Protection Act (“COPPA”).  Publisher shall not correlate or associate End-User Data with personally identifiable information, such as name, address, or email address. Publisher may, however, use the Data that is provided, generated, or collected in connection with campaigns on the Flat Ads Services for the purposes of synching or linking the End-User Data to other data Publisher has previously collected through means disassociated with Flat Ads (such as through Publisher’s other data provider relationships). Without qualification of the above restrictions, Publisher may not use, cache, or otherwise store Data from any non-winning bid. Publisher will take efforts consistent with high-quality industry standards to secure End-User Data in its possession. Publisher will alert Flat Ads of any unauthorized disclosure or use of End-User Data within twenty-four (24) hours of becoming aware.

  1.       Behavioral Advertising. If Publisher engages in activity related to tracking of End-Users’ activities in order to deliver tailored advertising, it will (a) maintain a means for End-Users to opt out of having their information collected by Publisher for Ad serving purposes and; (b) maintain an opt-out on the portal provided by the Digital Advertising Alliance (DAA) or a similar self-regulating organization (such as the NAI) and will comply with the principles for Online Behavioral Advertising or Interest-Based Advertising established by that organization.
  2.       Transfer and Ownership of Data. Publisher understands that under no circumstance is it allowed to transfer, share, sell, or assign to or with any third parties any of the Data or use the Data to create various derivatives, data sets, toolsets, or any functional equivalent of the Data. Further, it is agreed and understood between the Parties that Flat Ads, to the extent permitted by law, owns and retains all the rights to the Data.
  3.       Data Processing. The Parties  hereby agree to observe all applicable regulations to collect, use, and process of Personal Data.
  1.    Confidentiality
  1.       Confidential Information. As used herein, “Confidential Information” means any non-public information, regardless of whether it is in tangible form, disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement and which is identified or marked as “confidential” or “proprietary” or which, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary. Flat Ads Confidential Information includes without limitation the terms of this Agreement and any non-public information relating to the Flat Ads Services. Except as otherwise expressly permitted under this Agreement, the Receiving Party will not disclose any Confidential Information to third parties.
  2.       Information shall not be deemed Confidential Information if the Receiving Party can show by competent evidence that such information: (a) was known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) became known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) became publicly known or otherwise ceased to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information.
  3.       Each Party shall use reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use or reproduction of the other Party’s Confidential Information during the Term and for a period of three (3) years following the termination of this Agreement. Confidential Information may be disclosed only to: (a) employees and agents of the Parties that have a need to know such information in the course of their duties (and with respect to agents under a contractual duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 7); (b) legal or financial advisors or potential acquirers of each of the Parties on a need to know basis (provided that such advisors and/or acquirers are under a contractual or professional duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 7); (c) the applicable Publisher and/or Advertiser (provided that such Publisher and/or Advertiser are under a contractual or professional duty to protect the Disclosing Party’s Confidential Information in a manner consistent with the obligations imposed by this Section 7); or (d) if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable prior written notice to the Disclosing Party (if legally permissible) and uses commercially reasonable efforts to cooperate with the Disclosing Party’s attempt to obtain a protective order). Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information that is in the possession of the Receiving Party.
  1.    Representations and Warranties
  1.       Mutual Representations and Warranties. Each Party hereto represents and warrants to the other Party that: (a) such Party has the full right, power, and authority to enter into this Agreement on behalf of itself and/or of its Advertisers or Publishers, as applicable, and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such Party, and the performance by such Party of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its representations, warranties, terms, and conditions; and (d) such Party shall conduct its business and perform hereunder in compliance with all applicable laws, rules, and regulations.
  2.       Representations and Warranties Regarding Children’s Privacy. Publisher represents and warrants to Flat Ads that: (a) it complies with the Children’s Online Privacy Protection Act (“COPPA”) in the collection and use of “Personal Information” (as defined by COPPA) from children under 13 years old; (b) it does not and will not transmit or otherwise make available to Flat Ads any Publisher Properties or Ad Inventory directed to children under 13 years old; and (c) it does not and will not transmit or otherwise make available to Flat Ads any Publisher Properties, Ad Inventory, information, or other data related to or from any End-User that is a child (i) under the age of 13, if the child is located in the U.S., or (ii) under the age for valid consent as defined by the laws or regulations of the given jurisdiction in which the child resides, if the child is located outside the U.S.
  3.       Flat Ads’s Representations and Warranties. Flat Ads represents and warrants that:
  1. it is the sole owner of the Flat Ads Services and has secured all necessary licenses, consents, and authorizations for operation of the Flat Ads Services; and
  2. it is in compliance with the applicable laws and regulations related to this Agreement.

8.   Disclaimer

  1.       Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING ITS PRODUCTS, SERVICES, OR INFORMATION THEREON OR OTHERWISE RELATING TO THIS AGREEMENT OR 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. EXCEPT AS OTHERWISE SET FORTH HEREIN, FLAT ADS DOES NOT WARRANT THAT ITS PRODUCTS, SERVICES, OR INFORMATION SHALL OPERATE UNINTERRUPTED OR ERROR-FREE.
  2.       PUBLISHER UNDERSTANDS THAT FLAT ADS DOES NOT PRODUCE CONTENT BUT RATHER FACILITATES TRANSACTIONS BETWEEN PUBLISHERS AND ADVERTISERS. FLAT ADS HAS NO RESPONSIBILITY TO REGULARLY REVIEW PUBLISHER SITES OR AD CONTENT.
  1.    Indemnification
  1.       By Flat Ads. Flat Ads hereby indemnifies and agrees to hold harmless Publisher and its directors, officers, employees, agents, and representatives from and against any and all demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs, or expenses arising out of a breach of any representation or warranty provided by Flat Ads under this Agreement (“Infringement Claim”), provided that the relevant Infringement Claim: (a) does not arise from any modification to the Flat Ads Services made by Publisher that is not under the approval or direction of Flat Ads, and (b) does not arise from the combination of the Flat Ads Services with other products or technology not approved or provided by Flat Ads. For the avoidance of doubt, Flat Ads shall have no obligation hereunder to the extent that any such Infringement Claim arises out of or relates to any third-party materials, or the modification or combination of the Flat Ads Services with any products or technology not approved, directed, or provided by Flat Ads (“Third-Party Materials”), to the extent that no allegation of infringement or infringement would have occurred but for such Third-Party Materials.
  2.       By Publisher. Publisher hereby indemnifies and agrees to defend and hold harmless Flat Ads and its affiliates, directors, officers, employees, agents, and representatives from and against any and all demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs, or expenses, including, without limitation, reasonable attorneys’ fees and the costs of any investigation, directly or indirectly arising from or in any way connected with (a) any breach of or default under the terms and conditions of this Agreement by Publisher, including, but not limited to, any breach by Publisher of its representations and warranties under this Agreement; (b) the Ads; (c) any negligence, gross negligence, or willful misconduct by or on behalf of Publisher or its employees or agents; and/or (d) the Publisher’s Services.
  3.       Indemnification Procedures. The obligations of each Party (the “Indemnitor”) under this Agreement to defend, indemnify, and hold harmless the other Party and its respective directors, officers, employees, agents, and representatives (each an “Indemnitee”) shall be subject to the following: (a) the Indemnitee shall provide the Indemnitor with prompt notice of the claim giving rise to such obligation; provided, however, that any failure or delay in giving such notice shall only relieve the Indemnitor of its obligation to defend, indemnify, and hold the Indemnitee harmless to the extent it reasonably demonstrates that its defense or settlement of the claim or suit was adversely affected thereby; (b) the Indemnitor shall have sole control of the defense and of all negotiations for settlement of such claim or suit; provided, however, that the Indemnitor shall not settle any claim unless such settlement completely and forever releases the Indemnitee from all liability with respect to such claim or unless the Indemnitee consents to such settlement in writing (which consent shall not be unreasonably withheld); and (c) the Indemnitee shall cooperate with the Indemnitor in the defense or settlement of any such claim or suit; provided, however, that the Indemnitee shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnitor. Subject to clause (b) above, the Indemnitee may participate in the defense of any claim or suit in which the Indemnitee is involved at its own expense.
  4.       In the event any such infringement claim, action, or allegation concerning one Party’s services is brought or threatened, the other Party may, at its sole option and expense: (a) procure for the allegedly infringing or infringing Party the right to continue the use of the services; (b) modify or amend the services or infringing part thereof, or replace the services or infringing part thereof with other software or materials having substantially the same or better capabilities; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement. Each Party will then be released from any further obligation to the other Party under this Agreement.
  1. Limitation of Liability

EXCEPT WITH RESPECT TO (A) CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7, (B) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY SEEKING TO LIMIT ITS DAMAGES, AND/OR (C) INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY WHETHER IN TORT (INCLUDING FOR NEGLIGENCE), CONTRACT MISREPRESENTATIONS OR OTHERWISE FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF INCOME, LOSS OF CUSTOMERS, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FLAT ADS AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE LESSER OF (A) THE AMOUNTS PAID BY FLAT ADS TO PUBLISHER UNDER THIS AGREEMENT DURING THE 6-MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE, OR (B) FIFTEEN THOUSAND U.S. DOLLARS (USD $15,000).

11.Miscellaneous

  1.    Modification. Any waiver, amendment, or other modification of any provision of this Agreement shall be effective only if in writing and signed by both Parties.
  2.    Governing Law, Jurisdiction, and Attorneys’ Fees. This Agreement shall be governed by, and construed in accordance with, the laws of Singapore without regard to the conflict of laws provisions thereof. Any dispute, controversy or claim relating to this Order, including the existence, enforceability or termination of this Order, may be submitted by either Party in writing to be finally resolved by arbitration (with a written notice to the other Party). The arbitration shall be conducted in Singapore under the auspices of the Singapore International Arbitration Centre. The prevailing Party in any litigation shall be entitled to recovery of its reasonable attorneys' fees from the other Party in addition to any other award of damages from the Tribunal.
  3.    Severability and Waiver. If any portion of this Agreement is held to be illegal or unenforceable, that portion shall be restated, eliminated, or limited to the minimum extent necessary so that this Agreement shall reflect as nearly as possible the original intention of the Parties, and the remainder of this Agreement shall remain in full force and effect. Any waiver (express or implied) or delay by either Party to enforce any term or condition of this Agreement or to exercise its right, power, or privilege arising hereunder shall not constitute a waiver thereof.
  4.    Survival. Sections 1 (“Definitions”), 4 (“General Provisions Regarding Fees”), 5 (“Privacy and User Data”), 6 (“Confidentiality”), 7 (“Representations and Warranties”), 8 (“Disclaimer”), 9 (“Indemnification”), 10 (“Limitation of Liability”), and 11 (“Miscellaneous”) of these Terms will survive the expiration or termination of this Agreement.
  5.    Force Majeure. Neither Party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event.  “Force Majeure Event” means (a) floods, earthquakes, or other similar elements of nature or acts of God; (b) riots, civil disorders, rebellions or revolutions in any country; or (c) any other cause beyond the reasonable control of the non-performing Party, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing Party through the reasonable use of alternate sources, workaround plans, or other reasonable precautions.
  6.    Notices. All notices and other communications required or permitted to be given to a Party pursuant to this Agreement shall be sent to the contact indicated in first page, and shall be deemed duly given (a) on the date delivered, if personally delivered, (b) on the business day after being sent by Federal Express or another recognized overnight courier service which utilizes a written form of receipt for next day or next business day delivery in each case addressed to the applicable Party at the address set forth below; or (c) on the business day following the day of facsimile or email transmission; provided that a Party hereto may change its address for receiving notice by the proper giving of notice hereunder.
  7.    Either Party may change its address for notices by providing at least ten (10) days’ prior notice to the other Party in the manner set forth in this Section.
  8.    Cumulative Remedies. All rights and remedies under this Agreement are cumulative and are in addition to any other rights and remedies a Party may have at law or in equity.
  9.    Interpretation. The section headings used in this Agreement are intended for reference purposes only and shall not affect the interpretation of this Agreement. If an ambiguity or question arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of this Agreement. This Agreement is written and negotiated in English; if this Agreement is translated into any other language, the English-language version shall control.
  10. Further Assurances. The Parties hereby covenant and agree that, subsequent to the execution and delivery of this Agreement and without any additional consideration, the Parties shall promptly execute and deliver any further legal instruments and perform any acts which are or may become necessary to effectuate the purposes of this Agreement.
  11. Binding Effect. This Agreement and its rights, privileges, duties, and obligations shall inure to the benefit of and be binding upon each of the Parties, together with their respective successors and permitted assigns.
  12. Assignment. Neither Party shall assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement to an acquirer of all or substantially all of such Party’s assets, stock, or business (whether by sale, merger, reorganization, operation of law, or otherwise), without the other Party’s prior written consent.
  13. Relationship of the Parties. The Parties are independent contractors, and nothing contained in this Agreement shall be deemed to create a joint venture, partnership, fiduciary, or other similar relationships between the Parties. Each Party has sole responsibility for its activities and its personnel, and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other Party in any manner.
  14. Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
  15. Notwithstanding any other provision herein, Flat Ads may seek injunctive relief, including preliminary injunctive relief, in any court to address a violation of Section 6 herein, which violation the Parties acknowledge would likely cause irreparable harm to Flat Ads not fully remediable through monetary damages.  Upon prevailing on any such injunctive claim, Publisher shall pay to Flat Ads reasonable attorneys’ fees and related costs and expenses.
  16. Counterparts. This Agreement may be executed and delivered in counterparts, (which may be exchanged by email, PDF, and/or facsimile), each of which shall be deemed an original. Such facsimile or electronic execution and delivery shall have the same force and effect as delivery of an original document with original signatures.