EPICENTER NETWORK, INC. ADVERTISER AGREEMENT
This Epicenter Network Services Agreement (the "Agreement") shall govern the terms and conditions of your participation in the Epicenter Network. By participating in the Epicenter Network, you (the "Client" or "you") agree to be bound by the terms of this Agreement. The term "Client" herein shall refer to any individual or entity who accepts the terms and conditions of this Agreement by submitting registration information, agreeing to these terms, signing a contract otherwise known as an Insertion Order (IO) with a link to these terms, by checking the "I Agree" checkbox at the time of registration and/or executing this Agreement (the "Effective Date"). By using and/or participating in the Epicenter Network, you acknowledge that you have read, understood and agreed to be bound by the terms and conditions of this Agreement (as amended from time to time by Epicenter in its sole and absolute discretion). The Program is offered to you by Epicenter Network, Inc., a Washington corporation ("EPICENTER").
BY REGISTERING FOR AND/OR USING THE EPICENTER NETWORK OR SERVICES, YOU AGREE AND CONSENT TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT INDICATE YOUR ACCEPTANCE AND DO NOT USE THE EPICENTER NETWORK PROGRAM OR SERVICES.
This Epicenter Network, Inc. Advertiser Service Agreement is as follows.
As an agency, brokerage, and affiliate network, EPICENTER facilitates the "Epicenter Network" or ("EN") via the Internet. The EN includes display advertising served via Adjuggler ad serving software, Co Registration using Active Prospect and Lead Generation and Cost Per Action advertising using Direct Track and EPICENTER’s internal platforms. A "Marketing Program" (or "Program") is where a person, entity, publisher or its agent operating one or more "Web site(s)" and/or subscription e-mail list(s) ("Publisher") may earn financial compensation ("Payouts") for "Transactions" (CPC’s, CPM’s, Sales and/or "Leads") made from such Publisher's Website, Network or subscription e-mails, etc. Transactions originate through an “Impression” or a “Click” made by a "Visitor" using a "Link" to a Website or Website content operated by an Advertiser (here, CLIENT). The Advertiser compensates EPICENTER, in accordance with this Agreement and its Program specifications. (Please note EPICENTER may use CLIENT’S in house tracking system in replacement of or in conjunction with the EN if previously outlined in writing and mutually agreed to by EPICENTER and CLIENT)
1.1 General Client Agreements. CLIENT agrees to:
(a) provide Creative Materials (defined as emails, banner ads, buttons, pop-ups, pop-unders, co-reg, lead-gen, hypertext or other links, works of authorship, promotional and any other advertising material supplied by CLIENT to EPICENTER for purposes of this Agreement) to be used by Publishers;
(b) integrate and maintain code provided by EPICENTER.
(c) provide accurate reporting for all transactions that CLIENT is paying EPICENTER for.
(d) compensate EPICENTER in accordance with this Agreement and the Program Specifications as outlined in the IO
(e) provide a list of invalid leads within five (5) calendar days of the end of the calendar month in which the leads were generated
CLIENT agrees NOT to:
(e) mislead Publishers, Visitors, or EPICENTER;
(f) operate or utilize a Website or e-mail Link to Websites that does not feature customer-friendly Web site navigation, or contains or promotes content that EPICENTER in its sole discretion determines does not meet a commercial or aesthetic standard. This includes but is not limited to: obscene, violent, hate-oriented, libelous, defamatory, abusive, bigoted, or otherwise offensive content, cracking, hacking or wares, or the offer of any illegal good or service or Link to a Website(s) that does so; and/or
(g) engage in any illegal activity of any type, including but not limited to displaying illegal content on CLIENT’s Website or offering any illegal good or service through CLIENT’s Website.
If CLIENT engages in any of the foregoing, this Agreement shall be subject to termination and/or deactivation as set forth in Section 7.2 and referral by EPICENTER to law enforcement agencies if appropriate. Notwithstanding the above, EPICENTER assumes no responsibility or liability associated with the content of CLIENT’s Creative Materials or CLIENT’s Website content, and may or may not review such content at its discretion.
1.2 Services to be Performed. EPICENTER agrees to perform the following services as agency for CLIENT:
(a) Placement of Creative Materials. EPICENTER will place Creative Materials on Publisher websites and in emails to promote and sell CLIENT’s product. EPICENTER shall not place the Creative Materials in any context deemed by CLIENT to be morally objectionable, including, without limitation, any context involving pornography, illegal activity, gratuitous, overly graphic and/or exploitative use of sex or violence, disparaging treatment of women, ethnic, religious or political groups, inaccurate or distorted presentation of facts to a blatantly partisan advantage or glorified consumption of drugs or alcohol. In addition, EPICENTER shall not place the Creative Materials and any other advertising material supplied by CLIENT to EPICENTER on any Website or Publisher list that engages in spamming, indiscriminate advertising or unsolicited email.
(b) If the parties mutually agree to expand the services to be performed hereunder by EPICENTER to other products or services relating to CLIENT, the parties may do so on mutually agreeable terms in the form of a written amendment to this Agreement via an IO
(c) In the event CLIENT receives notice from any third party that such third party received CLIENT spam or CLIENT unsolicited email advertisements (or otherwise) through a Website or Publisher, EPICENTER shall take prompt (within 48 hours) action to investigate all such claims and provide CLIENT with reasonable feedback as to the validity or resolution of such third party complaint.
2.1 EPICENTER Publishers. Upon Your "Launch Date" (as defined in Section 7.1), Publishers may participate in CLIENT’s Program for the opportunity to earn Payouts through promoting CLIENT‘s "Campaigns" (cost-per-Transaction promotions). Upon acceptance to EN, Publishers ("Publisher") may post Links to CLIENT’s Website or Website Content that CLIENT provides to EN in accordance with this Agreement. EPICENTER may also direct Publishers to CLIENT’s in-house affiliate program.
2.2 Publishers’ Use of Links. Each Publisher may place or remove Links from its Websites and/or subscription e-mail messages to CLIENT’s Website at such Publisher's discretion. Publishers may not place Links to CLIENT’s Website in newsgroups, message boards, unsolicited e-mail and other types of spam, counters, chatrooms, guestbooks, IRC channels or through similar Internet resources. Publishers must place Links to CLIENT’s Website such that it is unlikely that they will mislead the Visitor, and such that it is reasonably likely that they will deliver legitimate Transactions by the Visitor to CLIENT. CLIENT retains the right to approve such ads and links.
2.3 Terminating Publishers from EN. EPICENTER reserves the right to terminate a Publisher, or one of a Publisher's Websites or subscription e-mail lists from the EN for any reason upon twenty four (24) hours notice.
3.1 EPICENTER Services. The code provided by EPICENTER that CLIENT is required to integrate into and maintain within CLIENT’s Links enables the tracking of critical information regarding Sales and Leads that result directly from Links placed by Publishers through the EN. CLIENT shall be able to view informational reports through the EN concerning Sales and Leads referred to CLIENT’s Account. In addition to tracking services and reporting capability, EPICENTER shall provide to CLIENT the following EPICENTER support services:
(a) technical integration assistance;
(b) payment of Payouts to Publishers upon receipt from CLIENT of funds for such Payouts;
(c) tax form processing and mailing to Publishers (Form 1099 or similar);
(d) access for both CLIENT and Publishers to on-line support service from EPICENTER's website or it’s affiliated websites or via an account manager (via info@epinetwork.com); and
(e) ad serving for all commercially standard Links for product images, banners, buttons, text links, co-registrations, lead generation and call center.
3.2 Ad Serving. CLIENT will provide Creative Materials to EPICENTER in an EN compatible format. Compatibility is in accordance to Internet Advertising Bureau guidelines as of the date of this Agreement (which may be found at: http://www.iab.net). EPICENTER will be responsible for serving standard Creative Materials. EPICENTERs Ad Serving tracking will be used to compute the final billable Transactions each month.
3.3 Pixel Tracking. In order for EPICENTER to track Visitors' Transactions resulting from clicks on Links to CLIENT’s Website and/or Website content through pixel image tracking, the "Transaction Tracking Code" must be integrated into CLIENT’s Web site. Pixel tracking must adhere to EN’s guidelines. EPICENTERs pixel tracking will be used to compute the final billable Transactions each month.
3.4 Co Registration Tracking. In order for EPICENTER to track Visitors' Transactions CLIENT’s Offer or CLIENTS web content via Co Registration, the Offer must be integrated into Active Prospect. Active Prospect will track and record all Transations submitted to the CLIENT. CLIENT will post a Confirmation of Receipt to Active Prospect (as part of the EN) each time a Valid Transaction is successfully submitted to the CLIENT. Both EPICENTER and CLIENT agree that a Confirmation receipt sent to EPICENTER will serve as a billable Transaction and EPICENTER will bill CLIENT for each confirmed and successfully submitted Transaction delivered from EPICENTER to CLIENT. CLIENT must notify EPICENTER if any Transactions are invalid within five (5) calendar days of the end of the month in which the Transactions were generated. CLIENT must prove that Transactions CLIENT is claiming are invalid are in fact truly and legally invalid Transactions.
3.5 Reporting. CLIENT is required to provide EPICENTER with accurate, verifiable reporting on Visitor Transactions daily. CLIENT reporting is only used to ensure that both CLIENT and EPICENTER are tracking the same amount of Transactions. EPICENTER will bill of off EPICENTER’s tracking. EPICENTER may deactivate CLIENT’s Account for failure by CLIENT to remedy within 7 days of written notification by EPICENTER the improper functioning of the Reporting, Links to CLIENT’s Website and/or Website content, due to (a) serving problems with Creative Materials where serving is the responsibility of CLIENT; or (b) CLIENT’s agent or Tracking Code problems attributable to CLIENT or CLIENT’s agent. EPICENTER may terminate this Agreement if CLIENT’s Account is not reinstated due to CLIENT’s refusal to cure the improper functioning of Links to CLIENT’s Website and/or Website content.
4.1 Payouts/Payout Rates. EPICENTER shall establish through the EN a Payout rate for a qualifying Transaction for each of CLIENT’s Campaigns. EPICENTER shall determine actual Payouts that should be credited to Publishers Accounts. CLIENT may discontinue or change Campaigns or Programs upon written notice to EPICENTER. Discontinuation/change of any Campaign or Program is effective seventy two (72) hours following actual receipt of a written request of such discontinuation/change to permit EPICENTER sufficient time to notify EPICENTER Publishers.
4.2 Payment. CLIENT will compensate EPICENTER as follows:
(a) Upon approved credit, terms are Net 30 from date of invoice (which may be sent by email and/or postal mail). All payments must be in U.S. funds unless specified differently on the IO.
(b) In the event of a dispute between CLIENT and EPICENTER regarding amounts due, or upon failure of a third-party’s tracking mechanism CLIENT agrees that EPICENTER’s tracking count is final. CLIENT understands and agrees that in no event, and under no circumstance, will data provided by any EPICENTER representative constitute final billing numbers. Only invoices sent directly to CLIENT are to be construed as representative of billable amounts. In the event that EPICENTER does not receive a written notification of a disputed bill, with rationale and support therefore specifically set forth therein, within seven (7) days from the date of the invoice, such invoice will be deemed valid and payable and may not thereafter be disputed. CLIENT acknowledges EPICENTER’s reliance upon this provision in making payments to participants and publisher in its network.
(c) Any late payments will accrue interest equal to one percent (1%) per month, or the maximum amount allowable under law, whichever is less, compounded monthly. CLIENT will be charged $25 for payments by checks that are returned due to insufficient funds. EPICENTER shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, expenses and costs) incurred in attempting to collect payment from CLIENT. CLIENT acknowledges that EPICENTER requires a tracking system that will serve as the verifiable log of responses for computing billing amounts. Unless otherwise agreed, EPICENTER will provide the tracking solution.
(h) In the event that EPICENTER must incur expenses related to collection of any outstanding balance and/or late fees, CLIENT shall immediately pay EPICENTER’s reasonable expenses associated with said collection, including, without limitation, reasonable attorney’s and collection agency’s fees.
4.3 Invoices. CLIENT will remit payment in US Dollars directly to EPICENTER. EPICENTER will be responsible for Publisher Payouts.
EPICENTER is under no obligation to make payment to Publishers where payment has not been received by EPICENTER. Publishers shall have a claim against CLIENT directly for non-payment of earned but unpaid Payouts that are unpaid because CLIENT has failed to make payment to EPICENTER. CLIENT’s Account may be deactivated without notice for non-payment.
5.1 Proprietary Rights and Licenses. CLIENT grants to EPICENTER a revocable, non-transferable, royalty free, international license to display on and distribute from EPICENTER's Website Links to CLIENT’s Website for CLIENT’s Program(s), and Creative Materials, including all trademarks, service marks, trade names, and/or copyrighted material that CLIENT provides to EPICENTER through the EN for the limited purposes of promoting CLIENT’s Program to Publishers and potential Publishers, subject to the terms and conditions of this Agreement and the Publisher's Publisher Service Agreement. The rights to display and Link to CLIENT’s Website are sub-licensable by EPICENTER to EPICENTER Publishers. EPICENTER and the EPICENTER Publishers shall not modify, in any way, any icons, buttons, banners, graphics files, or Creative Materials that CLIENT has made available through the EN pursuant to the foregoing license, except, with respect to EPICENTER, as necessary to conform CLIENT’s Links to a EPICENTER compatible format. EPICENTER and the Publishers may not remove or alter any copyright or trademark notices.
EPICENTER hereby grants to CLIENT a revocable, non-transferable, royalty free license to display, use and employ the EN and all reporting code supplied by EPICENTER to CLIENT for the purposes of this Agreement. CLIENT agrees that its use of any EPICENTER Website (such as www.epicnetwork.com), and of any EPICENTER logos, trademarks or Links is subject to the license and terms of use that are available on such Website ("Terms of Use"). Each party may make statements that it is doing business with the other and use the other's logo with such statements.
5.2 No Challenge to Intellectual Property. EPICENTER acknowledges that it obtains no proprietary rights in CLIENT’s Creative Materials, Website Content, or other intellectual property and agrees not to challenge CLIENT’s proprietary rights to such intellectual property during the term of this Agreement. CLIENT acknowledges that CLIENT obtains no proprietary rights in EPICENTER's content, patents, and patent applications, or other intellectual property and agrees not to challenge EPICENTER's proprietary rights in EPICENTER's patents and patent applications during the term of this Agreement. CLIENT acknowledges that CLIENT obtains no proprietary rights in any EPICENTER Publishers' content or other intellectual property, and agrees not to challenge such Publishers’ proprietary rights until CLIENT has terminated the Publisher from CLIENT’s Program or the Publisher has withdrawn from CLIENT’s Program by removing all Links provided by CLIENT through the EN.
5.3 Terminating Licenses. This Agreement may be terminated in whole or part if EPICENTER has reasonable concerns that CLIENT is diluting, tarnishing or blurring the value of EPICENTER's trademarks, service marks, and/or trade names, and/or for breach of EPICENTER's other intellectual property rights.
6.1 Privacy and Confidentiality. CLIENT or EPICENTER may provide the other with information that is confidential and proprietary to that party or a third party, as designated by the disclosing party ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, and in all cases no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of the Confidential Information in order to protect any proprietary interests of the disclosing party. "Confidential Information" shall not include (even if designated by a party) information that is or becomes part of the public domain through no act or omission of the receiving party, or is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement.
The information that CLIENT supplies to establish and maintain CLIENT’s Account shall be CLIENT’s Confidential Information. However, CLIENT agrees that EPICENTER may provide CLIENT’s e-mail address(es) and basic Advertiser Account detail (including but not limited to Website name, date Website first entered into operation, and visitor demographics) to Publishers. CLIENT shall be responsible for all usage and activity on CLIENT’s account and for loss, theft or unauthorized disclosure of CLIENT’s passwords (other than through EPICENTER's negligent or willful conduct or omission). CLIENT shall provide EPICENTER with prompt notification to EPICENTER client services (via info@epinetwork.com), and through written notification to EPICENTER as provided in Section 7.1 below, of any known or suspected unauthorized use of CLIENT’s Account or breach of the security of CLIENT’s Account. EPICENTER's Privacy Policy, accessible from the home page of www.epicenternetwork.com, is incorporated into this Agreement and may be amended from time to time by way of re-publication.
6.2 Collection and Use of Transaction Data. EPICENTER shall not collect information about CLIENT’s Visitors' Transactions, other than what it receives through the installed tracking code and/or reporting sent by CLIENT. EPICENTER reserves the right to be able to utilize this data, which may include information about CLIENT’s performance statistics, to analyze EN trends, monitor EN efficiencies, maintain the integrity of the tracking code, promote EN capabilities and efficiencies, and promote CLIENT’s Program capabilities and efficiencies to Publishers. EPICENTER may also disclose data regarding a Visitors' Transactions to the Publisher that referred the Visitor to CLIENT for the performance of this Agreement and the Publisher's Publisher Service Agreement.
6.3 Collection and Confidentiality of Visitors' Personal Data. EPICENTER shall not collect any personal or business information that can be linked specifically to any Visitors to CLIENT’s Website that result directly from Links on Publishers' Websites and subscription e-mail mailings other than when such information is submitted via Active Prospect.
7.1 Term and Notices. This Agreement shall commence upon CLIENT’s indication that CLIENT has accepted this Agreement, and, subject to Section 7.2, shall be in effect for one year following the date (known as the "Launch Date") in which CLIENT: (i) has properly installed the EPICENTER tracking code within CLIENT’s Links, and (ii) such Links to CLIENT’s Website or Website content are accessible to Publishers through the EN. After the initial Term, this Agreement shall automatically renew for additional one year Terms unless terminated in writing. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement in writing via overnight mail (or international express mail by an internationally recognized courier): (a) to EPICENTER at EPICENTER, 3500 188th St, SW, Lynnwood, WA 98037 with a copy sent via facsimile to 801-858-6059, and, (b) for CLIENT, at the address listed in the IO or registration information. Notices shall be effective the earlier of the notified party's actual receipt (or refusal to accept to receipt), or five (5) days after the date of mailing.
7.2 Temporary Deactivation and Termination. Not withstanding the Term specified in Section 7.1 herein, either party may terminate this Agreement with or without cause upon written notice from the other party in accordance with Section 7.1. With respect to termination by CLIENT, termination shall be effective 72 hours following actual receipt of notice of termination (sufficient notice shall include overnight mail (or international express mail by an internationally recognized courier or email that receives a receipt of confirmation from EPICENTER) to provide EPICENTER with sufficient time to remove CLIENT’s Program from the Internet. At its sole discretion, EPICENTER may elect to temporarily deactivate CLIENT’s Account(s) for any breach of this Agreement upon CLIENT’s failure to cure such breach following written notice of the breach in accordance with Section 7.1.
Upon termination of this Agreement, any outstanding balance shall be paid by CLIENT to EPICENTER within 10 days of the date of termination. Upon termination of this Agreement, any license or sublicense granted to CLIENT or by CLIENT under this Agreement will terminate, and the licensee/sub-licensee must immediately destroy or delete all physical and electronic copies of the Intellectual Property and the Confidential Information, and cause all Links to EPICENTER to be removed. EPICENTER shall (a) inform Publishers that CLIENT’s Program(s) has ended (if terminated) or has been temporarily discontinued (in the case of deactivation), (b) stop distributing Links to CLIENT’s Web site, and (c) request (or suggest, in circumstances of deactivation) that CLIENT content and Links placed by Publishers to CLIENT’s Website be removed from such Publishers' Websites and/or subscription e-mail.
No remedy or election shall be exclusive but shall be cumulative with all other remedies at law or in equity.
7.3 Survival. The provisions of this Section and Sections 1, 4.2, 6.1, 7.1, 7.2, 9.2, 9.3, 9.4, 10, and 11 shall survive the termination of this Agreement.
8. Third Party Disputes. Should any third party or a Publisher that is not a member of CLIENT’s Program dispute a party's right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on a party's Web site, a party may, immediately upon notice, terminate this Agreement or, in the case of EPICENTER, deactivate CLIENT’s Account. A party's representations regarding the preceding may or may not be relied upon in the other party's decision whether to terminate this Agreement, or, in EPICENTER's case, deactivate CLIENT.
9.1 Business Operations. Each party will make reasonable commercial efforts to keep its Website operational during normal business hours. However, the parties agree it is normal to have a certain amount of system downtime and agree not to hold each other or Publishers liable for any of the consequences of such interruptions.
9.2 Authority and Compliance with Laws. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. Each party is responsible for compliance with the applicable local laws in the jurisdiction from which it operates and represents and warrants such compliance. Each party represents and warrants that the party shall have all appropriate authority and rights to grant the licenses hereunder, and that to the party's knowledge the licenses, and in the case of EPICENTER, the technology that EPICENTER utilizes for the EN, does not infringe a third party's (or the other party's) intellectual property rights.
9.3 Limitation of Liabilities. WITH THE EXCEPTION OF A PARTY'S INDEMNIFICATION OBLIGATIONS, ANY LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF PAYOUTS PAID AND PAYABLE TO PUBLISHERS (IN THE AGGREGATE) BY EPICENTER, ALL FEES PAID AND PAYABLE BY CLIENT TO EPICENTER, AND INTEREST PAID AND PAYABLE BY CLIENT TO EPICENTER DURING THE TERM OF THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY A PUBLISHER OR ADVERTISER OF THE EN), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
9.4 Disclaimer of Warranties. EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BOTH PARTIES DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT A PARTY'S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY'S "INFORMATION" (WEBSITE). ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER.
9.5 Benefit of the Bargain. THE PROVISIONS OF SECTIONS 9.3-9.5 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
10 Indemnification. Each party ("indemnitor") shall defend, indemnify and hold the other party ("indemnitee") harmless against all claims, suits, costs, damages and judgments incurred, claimed or sustained by third parties, including but not limited to Publishers, for the indemnitor's breach of this Agreement and for claims of product liability and/or malpractice or misfeasance in the performance of services ("Claims"). Should any Claim give rise to a duty of indemnification under the provisions of this Agreement, then the indemnitee shall promptly notify the indemnitor, and the indemnitee shall be entitled, at its own expense, and upon reasonable notice to the indemnitor, to participate in, control the defense, compromise and to defend such Claim. The indemnitor may not settle any claim without the consent of the indemnitee, except upon terms and conditions offered or consented to by the indemnitee, which consent shall not be unreasonably withheld. Neither participation nor control in the defense shall waive or reduce any obligations to indemnify or hold harmless.
11 Non-Competition. CLIENT agrees to respect the relationship that EPICENTER has with EPICENTER’s Publishers and other subcontractors and shall not attempt to circumvent EPICENTER and contract directly with such Publishers and subcontractors for the services described under this Agreement, or reasonably similar services, without EPICENTER’s written approval. This prohibition shall be in effect for one year following termination of this Agreement. This Section 11 shall not apply to any advertiser, partner, consultant or marketer who does not have an agreement in place with EPICENTER to perform services for EPICENTER at the time that CLIENT enters into an agreement with such advertiser, partner, consultant or marketer.
12.1 Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
12.2 Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. CLIENT agrees that its rights under a Publisher's Publisher Service Agreement do not exceed the Publisher's duties, as CLIENT’S rights are limited by any defenses, claims and rights a Publisher may have. CLIENT agrees that its consent is not necessary to modify any Publisher Service Agreement.
12.3 Arbitration. EPICENTER and CLIENT agree that each desires to establish a straightforward and inexpensive process to resolve any disputes arising from or related to this Agreement, including but not limited to, its interpretation, and the rights of the parties hereunder that includes dispute resolution processes that are an alternative to expensive and uncertain litigation. To that effect, EPICENTER and CLIENT agree to submit all such disputes to final and binding arbitration before a single Arbitrator selected by Judicial Dispute Resolution, Inc. The Arbitrator shall determine the procedures to be used during arbitration, and shall have full power to grant or refuse discovery, hear or refuse to hear evidence, and shall have all other such authority that the Arbitrator in his or her sole discretion deems necessary. The Arbitrator may award injunctive relief in lieu of or in addition to money damages. The Arbitrator’s determination shall be non-appealable. The parties shall share the costs of arbitration equally. Any arbitration held pursuant to this Section shall be held in Seattle, Washington
Compliance with the dispute resolution procedures set forth in this Section is mandatory. Failure or refusal by a party to participate in arbitration shall not prevent the Arbitrator from issuing a fully binding and enforceable judgment. A party who prevails in any necessary action to compel a non-complying party to follow the agreed dispute resolution procedures set forth in this Section shall be entitled to an award of reasonable attorneys’ fees and costs incurred in litigation of such an action.
Pursuant to this Section, EPICENTER and CLIENT waive their rights to a jury trial, their objections to arbitration in Seattle based on lack of personal jurisdiction, venue or forum non conveniens, and their rights to have their claims decided in a court of law (except with respect to any appeals allowed under state or federal law). A party that substantially prevails in an arbitration brought hereunder is entitled to recover (following exhaustion of any right of appeal) from the other party its reasonable attorneys' fees and costs.
12.4 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
12.5 Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
12.6 Entire Agreement, Assignment and Amendment. This Agreement contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. Neither party may assign this Agreement without the prior express written permission of the other party. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. EPICENTER may establish from time to time rules and regulations regarding use of the EN as published on the EN and such rules and regulations are incorporated herein.
Signatures
EPICENTER NETWORK, INC.
3500 188th St. SW, Suite 480
Lynnwood, WA 98037
legal@epinetwork.com
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