Engage.IM Publisher Terms & Conditions

 

ENGAGE.IM PUBLISHER TERMS AND CONDITIONS

 

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN FULL AND VERY CAREFULLY PRIOR TO REGISTERING AS A PUBLISHER, ADVERTISER, OR USER OF ENGAGE.IM. YOUR AGREEMENT TO THESE TERMS CREATES A LEGAL BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU AND ENGAGE.IM, LLC. IF YOU REGISTER FOR THE ENGAGE.IM PROGRAM OR PARTICIPATE IN THE ENGAGE.IM PROGRAM YOU ARE AFFIRMATIVELY STATING AND AGREEING THAT YOU ARE IN AGREEMENT WITH THESE TERMS AND CONDITIONS AND FULLY ACCEPT THE COVENANTS, REPRESENTATIONS, WARRANTIES, AND TERMS CONTAINED HEREIN.

 

This Agreement (the “Agreement”) is entered into by and between You and Engage.IM, LLC (“Engage.IM”). This Agreement shall govern the Engage.IM Network and the Engage.IM Advertising Program (the “Program”) and Your use, agreement, and relationship with Engage.IM, and the Program. “You”, “Your”, or “Publisher” shall be defined as any person or entity identified in the registration and application process (or listed at the time of enrollment), as submitted by the same person, entity, affiliated persons, and/or any agency, representative, or network acting on behalf of such person or entity, such being bound by this Agreement.

 

  1. PROGRAM.

Subject to this Agreement, the Terms, and any and all rules, regulations, policies, or procedures that are developed, modified, or enacted by Engage.IM from time to time, Engage.IM hereby grants you the limited and revocable right of use, access, and participation in the Program. The Program gives users the ability to participate as an Advertiser or a user and distribute comments and content including articles, campaigns, advertisements, offers, video and/or promotional materials across the Internet through the Engage.IM Feed (hereinafter collectively referred to as the “Feed”) on various websites. The Program also gives certain users the ability to participate as a Publisher (website owner). The Program gives Publishers the ability to host the Feed and thereby present advertisements, campaigns, offers, user comments and other user generated content, videos and/or promotional materials on their site through the Feed. Participation in the Program as an Advertiser or Publisher is at your own risk. 

 

  1. PUBLISHING.

Upon accessing the Engage.IM Network or participating, registering, and/or enrolling in the Program, You affirmatively represent and warrant that You are at least 18 years of age and hereby agree that Engage.IM may serve, third party and/or Engage.IM provided user generated content, comments, articles, advertisements, campaigns, offers, promotional materials, and/or other content, including, but not limited to, sponsored links, images, videos, ad boxes, search results, and/or referral Articles, throughout the world wide web and/or in relation to the Web site(s), media player(s), music player(s), video players(s), video content, music content, mobile content, and/or devices that You designate, or such other properties that may become available to Engage.IM from time to time (collectively referred to herein as “Property” and/or “Website”), and the Atom, RSS, or other feeds distributed through such Website. In order to enroll in the Program and display the Feed, You must have on any Property being utilized a clearly written privacy policy disclosing that third parties may be placing and reading cookies and using web beacons to collect information, such cookie or web beacon being placed on the browser of visitors to the Property. The privacy policy must be strictly adhered to and posted in a location that is easily accessible to all visitors and/or users of the Property. Please advise all users and/or visitors that cookies may be disabled.  

 

  1. IMPLEMENTATION.

Engage.IM will provide You with certain specifications, rules, and regulations to be followed and adhered to at all times. Engage.IM may in its sole and absolute discretion amend, modify, or change the specifications, rules, and regulations. Specifications may change to allow for network enhancements, including, but not limited to, code changes, delivery improvements, and optimization of displays, tracking, and reporting of the Feed. You shall not alter the code, link, script, programming, pixel, article, content, and/or data provided to You by Engage.IM without the prior express written consent of Engage.IM.

 

  1. PUBLISHER DUTIES.

You are solely responsible for Your Website(s) and/or Property(ies), including all content and materials, maintenance and operation thereof; the proper implementation of Engage.IM specifications; adherence to the terms of this Agreement; all applicable laws, rules, regulations, statutes, and ordinances; compliance with all terms, conditions and requirements of any source of web traffic to your website(s); and any Engage.IM rule, policy, or procedure. You hereby grant Engage.IM the sole and exclusive right to investigate, at its own discretion, any violation, activity, or alleged breach of this Agreement, or any engagement in any activity prohibited by this Agreement. Engage.IM shall not be liable or responsible for anything related to You or Your Websites, including, but not limited to, the receipt and/or collection of data, information, or queries from end users of Your Websites, or the transmission of any information or data between You, Your Website, and Engage.IM. In addition,  the Feed is provided on an “AS IS” or “AS AVAILABLE” basis and Engage.IM makes no warranty or representation that such the Feed will be available, delivered, or work properly. Engage.IM is not required to notify You of any problems or issues relating to the Engage.IM Network, the Program, or the Feed.

 

  1. SERVICE.

Approved Publishers shall be permitted to participate in the Program and the Feed from Engage.IM for publication on Publisher’s Website(s) and/or Property(ies). Engage.IM will specify the amount and terms under which You will earn payment (“Bounties”). Bounties are generated from a specified transaction (“Action”) as defined by Engage.IM. Actions can include, without limitation, clicks, click-throughs, sales, registrations, impressions and leads. The applicable Action associated with each campaign and/or Your account shall be set forth in the applicable terms listed on the Engage.IM Network and, unless otherwise specified, such shall be subject to change at the sole and absolute discretion of Engage.IM. If You accept the Feed to run on your Website(s), You agree to adhere to any specific policies, procedures, and specifications associated with the Feed, and operate at all times in accordance with the Agreement. Engage.IM may, at its sole discretion, change the Feed or the terms of a campaign at any time, without prior notice to You, unless otherwise specified. Similarly, You may cease participation in the Program at any time, unless otherwise specified in this Agreement or other terms associated with the campaign. Engage.IM is responsible for displaying and administrating the Program and tracking associated Bounties and Actions. Program data compiled by Engage.IM including, but not limited to, numbers and calculations regarding Actions and associated Bounties (“Program Data”), will be calculated by Engage.IM through the use of tracking technology and shall be final and binding on You. Any questions regarding the Program Data must be submitted in writing seven (7) days of initial appearance in the tracking system; otherwise the Program Data will be deemed to be accurate and accepted by You. Publisher understands and agrees that on occasion the Service and/or Engage.IM Network may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of Engage.IM or which are not reasonably foreseeable by Engage.IM including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Publisher acknowledges and agrees that Engage.IM has no control over the availability of the Program, Feed, Services, and Engage.IM Network on a continuous or uninterrupted basis. Terms of the Agreement are subject to Engage.IM hardware, software, and bandwidth traffic limitations. Engage.IM’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.

 

  1. SUB-PUBLISHERS/AFFILIATES.

Publisher may desire to use its business partners and/or associates to fulfill the obligations or exercise the rights under a particular Program. For the purposes of this section, any of Publisher’s business partners or associates that participate in or perform any activities on behalf of Publisher under the Agreement shall be considered to be a “Sub-Publisher.” Engage.IM reserves the right to review and approve or reject any and all Sub-Publishers and may revoke a prior approval of any Sub-Publisher at any time and for any reason. Sub-Publishers must meet the same criteria for approval as the Publisher as set forth in the Agreement and must comply with all the terms and conditions that are applicable to Publisher under the Agreement and any and all other applicable terms required by Engage.IM. Publisher is responsible for and shall fully and unconditionally indemnify Engage.IM for any and all actions of any of its Sub-Publishers, including the payment of legal fees and costs if necessary. Further, Engage.IM may, at its sole discretion, terminate a Publisher at any time based on the actions of that Publisher’s Sub-Publisher(s). Once express approval of a Sub-Publisher has been granted by Engage.IM, notices to the Publisher shall be deemed notice to that Publisher’s approved Sub-Publisher(s). Publisher agrees that Engage.IM is under no obligation to pay a Sub-Publisher. Engage.IM further reserves the right to withhold or refuse payment to any Publisher in the event that any of its Sub-Publishers breach the Agreement.  In addition, Publisher’s Affiliates may receive Services under this Agreement; provided that and solely to the extent such an Affiliate has entered into an “Affiliate Agreement” to this Agreement. An “Affiliate” means, with respect to a party, an entity that directly or indirectly controls, is controlled by or is under common control with such party.  If a Publisher Affiliate enters into an “Affiliate Agreement” to this Agreement, Publisher will provide a copy of this Agreement to such Affiliate.  Each Publisher Affiliate that has entered into an Affiliate Agreement shall be invoiced and shall pay for the Program and services it receives under this Agreement separately from each other Publisher Affiliate. Engage.IM agrees that (x) Publisher shall not be responsible for any of its Affiliates’ obligations under any Affiliate Agreement and that (y) no Publisher Affiliate shall be responsible for Publisher’s obligations under this Agreement or any other Publisher Affiliate’s obligations under its respective Affiliate Agreement.

 

 

  1. TERMS OF PAYMENT.

You agree to be paid the applicable Bounty rate for each Action verified by Engage.IM as specified by Engage.IM approximately thirty (30) days after the last day of a given calendar month, for Bounties realized in that month. You agree that payment for Bounties will be owed to You from the applicable Advertiser, and that corresponding payments shall be made by Engage.IM to You out of the funds actually collected by Engage.IM from the applicable Advertiser. Engage.IM shall have no payment obligation to Publisher where Advertiser has not remitted sufficient payments to cover the Bounties otherwise due and owing Publisher. All Publisher accounts will be paid in United States dollars ($US). Notwithstanding anything contained herein to the contrary, no Bounty payments will be issued for any amounts otherwise due Publisher that total less than Two Hundred Fifty Dollars ($250.00) (“Payment Threshold”). Upon termination of the Agreement, all legitimate moneys due to Publisher that are actually collected from the applicable Advertiser, even amounts below the Payment Threshold, will be paid during the next billing cycle. Every Publisher account must have a unique, valid taxpayer identification number (TIN), valid Social Security Number, or other applicable unique government identification. All payments due hereunder shall be in U.S. dollars and are exclusive of any applicable taxes. Publisher shall be responsible for all applicable taxes (excluding taxes applicable to Engage.IM’s income) provided, however, Engage.IM shall pay and be solely responsible for all value added tax, goods and services tax, sales tax, and any other applicable transactional taxes or other taxes billed to end users (“Indirect Tax”) which may be imposed, assessed or levied on Engage.IM for the sale, license, importation, distribution, exhibition and/or other use of Publisher properties and/or for the granting and the exercise of the rights hereunder. If any Indirect Tax is required under applicable law, such Indirect Tax will be added to the amounts payable by Engage.IM in connection with this Agreement, and will be calculated by multiplying such amounts by the appropriate rate of Indirect Tax. An Advertiser may request that Engage.IM, or Engage.IM may on its own initiative, debit from the Bounties otherwise due and owing Publisher an amount equal to a Bounty previously credited to Publisher’s account where: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (c) there are Actions that do not comply fully with the terms of the Agreement, including where the applicable non-complying Action is not the result of Publisher’s action, omission and/or failure to comply with the terms and conditions of the Agreement; (d) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Action; or (e) there is any failure on the part of Publisher to comply with the Agreement and/or the applicable Program Terms (collectively referred to as a “Chargeback”). Chargebacks requested by an Advertiser in accordance with this Section may be applied up to one hundred and twenty (120) days after the end of the month in which the applicable Bounty was earned (“Chargeback Period”). An Advertiser may request that the payment of a Bounty be postponed for one (1) payment cycle where: (i) Advertiser is verifying a lead (for Programs in which lead generation is a component of the Action); (ii) Advertiser has a product return policy that allows the underlying purchaser to return the product during the Chargeback Period; or (iii) the applicable Program Terms provide for such a postponement. The number or amount of Actions, credits for payments and debits for Chargebacks, as calculated by Engage.IM, shall be final and binding on Publisher. The parties expressly acknowledge, confirm, and agree that, at all times during Your participation in the Program, Engage.IM specifically reserves the right to determine whether purported impressions and/or other Actions are in fact valid and give rise to Engage.IM payment obligations pursuant to these Terms and Conditions and the terms of any applicable Insertion Order(s). This determination shall be made at Engage.IM’s sole and absolute discretion, and may be made in consideration of the geographic location of users or any other factors deemed relevant by Engage.IM in making such determination. Definition of Revenue for Revenue Share Arrangements: In the event the parties agree to a revenue share arrangement, Engage.IM will pay you a revenue share based on “Net Revenue” which is defined as the gross revenue received by Engage.IM as a result of valid clicks, less adjustments for chargebacks, commissions, direct cost charged to Engage.IM by third party providers, discounts allowed, refunds and administrative fees, and bad debt deductions, provided that all such adjustments and deductions do not, in the aggregate, exceed 15% of the applicable gross revenue.

 

  1. FRAUD.

Engage.IM actively monitors traffic, Actions, Bounties and other Program-related activities for potential fraud. If Engage.IM suspects that Your account has been used in a fraudulent manner, Your account will be deactivated effective immediately and with no notice to You pending further investigation. If You add Actions, or inflate Actions, through the use of fraudulent means of traffic generation, as determined solely by Engage.IM, You will forfeit all of the Bounties related to that Program, and Your Publisher account will be terminated effective immediately. Engage.IM reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. It is the OBLIGATION of Publisher to prove to Engage.IM that it has NOT engaged in fraud. Engage.IM will hold Your Bounty-related payments in 'Pending Status' until You have satisfactorily provided evidence that demonstrates to Engage.IM that You have not engaged in fraud. If You are unable to provide Engage.IM with satisfactory evidence that You have not engaged in fraud within seven (7) days of Your Bounties being placed in “Pending Status,” then Engage.IM reserves the right to terminate Your Publisher account and cancel payment on the applicable Bounties, at its sole discretion and without any further obligations to You.

 

  1. TERMINATION.

The Agreement may be terminated by either Party upon fourteen (14) days’ prior written notice. In addition, Engage.IM reserves the right, in its sole and absolute discretion, to terminate You from the Program at any time for any reason, by providing written notice to You, and in such instances, Engage.IM agrees to keep the Program on Your site for an agreed upon period but no less than seven (7) days after notice is received by You. In connection therewith, Engage.IM also reserves the right to terminate Your access to the Engage.IM Network at any time with notice to You, provided You shall continue to have access for the agreed upon post-Term period. Termination notice may be provided via e-mail and will be effective immediately. Upon termination, Publisher agrees to immediately remove from its Website(s) and/or Property(ies) any and all Articles, content, materials, and Engage.IM Code or other intellectual property made available to Publisher in connection with its performance under the Agreement. The representations, warranties and obligations of Publisher contained within the Agreement shall survive and remain in full force and effect after termination of the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled.

 

  1. COMPLIANCE.

Publisher hereby represents and warrants that it: has read Engage.IM’s policies and guidelines, as same are made available at Engage.IM’s website and shall comply with any and all applicable policies and guidelines, as well as updates to same.

 

  1. PROMOTIONAL USE.

Engage.IM may, subject to Your prior written approval in each instance, use Your name and logo in presentations, marketing materials, customer lists, financial reports, Web site listings of customers, and search results. You may request in writing to use Engage.IM's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, but at no time shall You use such trade names, marks, and/or identifying information without the prior express written consent of Engage.IM.

 

  1. REPRESENTATIONS AND WARRANTIES.

You represent and warrant that (a) all of the information provided by You to Engage.IM to enroll in the Program true, accurate, correct, and current; (b) You hereby certify under oath that you are the owner of each Website and/or Property or that You are legally authorized to act on behalf of the owner of such Website and/or Property for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations  in Your performance of any acts hereunder. In addition, to the extent that Your Site is a media player (1) You represent and warrant that You have a valid license to use and distribute such media player (including all content therein, including without limitation any Articles) for the purposes of this Agreement and the Program; and (2) You shall ensure that any media player(s) shall comply with the terms and conditions set forth herein. You further represent and warrant that each Property and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; (iii) fully comply with all terms, conditions and requirements of any source of web traffic to you website(s); and (iv) are not pornographic, hate-related or otherwise violent in content.

Engage.IM represents and warrants that it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, statutes, ordinances and regulations relevant to the performance of its obligations under this Agreement, including without limitation, applicable privacy and data security laws.   Further Engage.IM represents and warrants that the Program does not and will not contain any program routine, device, code or instructions (including any code or instructions provided by third parties): (w) designed to disrupt, disable, or otherwise interfere with the operation of any Publisher or end user property or service, such as, but not limited to, denial of service routines, (x) designed to damage the integrity of any Publisher or end user property or service, such as, but not limited to, time/logic bombs, time locks or similar harmful, malicious or hidden routines, (y) designed to damage the confidentiality of Publisher or end user data, property or services, such as, but not limited to, malware, viruses, Trojan Horses, spyware, adware, worms or backdoor routines or data transmissions, or (z) that transmits or provides access to information regarding the end user or the activities or preferences of the end user other than the data and information described in Section 15 below.  Additionally, without limiting any other provision in this Agreement, to the extent that Engage.IM engages in any targeted or online behavioral advertising involving the Program or Publisher’s data (“OBA”), Engage.IM agrees to comply with all applicable legal and industry self-regulatory requirements governing online behavioral advertising, including without limitation IAB standards (Self-Regulatory Principles for Online Behavioral Advertising) and the Network Advertising Initiative’s 2013 Self-Regulatory Code of Conduct (located at http://www.networkadvertising.org/2013_Principles.pdf).  Engage.IM will ensure that any advertising served under an OBA model pursuant to the Program will contain industry standard notice and choice mechanisms in or around the ad, such as the DAA “Ad choices” icon.

 

 

  1. INDEMNIFICATION.

You shall indemnify, defend and hold Engage.IM, its agents, advertisers, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Engage.IM Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, demand for payment, and expense (including damage awards, settlement amounts, and reasonable outside legal fees), brought against any Engage.IM Indemnified Person(s), arising out of, related to or which may arise from Your unauthorized use of the Program, the Property(ies), and/or Your breach of any term of this Agreement.  Engage.IM shall indemnify, defend and hold You, Your agents, advertisers, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively “Publisher Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, demand for payment, and expense (including damage awards, settlement amounts, and reasonable outside legal fees), brought against any Publisher Indemnified Person(s), arising out of, related to or which may arise from Engage.IM’s breach of any term of this Agreement.

 

  1. ENGAGE.IM RIGHTS.

Engage.IM owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including Engage.IM's Feed, ad serving technology, search technology, referral technology, marketing technology, marketing strategies, code, programming, strategies, and features, including implied licenses, and excluding items licensed by Engage.IM from third parties and excluding any third party media player that may comprise the Property), and that You will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Engage.IM services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto. You will not remove, obscure, or alter Engage.IM's copyright notice, features, trademarks, symbols, or other proprietary rights notices affixed to or contained within any Engage.IM services, software, or documentation (including without limitation the display of any Engage.IM or third party Articles). "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trademark law, international treaty, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.

 

  1. INFORMATION AND DATA COLLECTION.

Engage.IM may retain and use, subject to the terms of the Engage.IM Privacy Policy located on Engage.IM’s website, all information You provide, including but not limited to Property demographics and contact and billing information (“Your Data”). You agree that Engage.IM may transfer and disclose to third parties any information including, but not limited to, personally identifiable information about You for any permissible purpose, including to third parties that reside in jurisdictions with less restrictive data laws than Your own. Engage.IM may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims.  In such instances, Engage.IM disclaims all responsibility, and will not be liable to You.

 

  1. DISCLAIMER AND LIMITATION OF LIABILITY.

EXCEPT FOR ENGAGE.IM’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL ENGAGE.IM BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE ENGAGE.IM NETWORK, THE PROGRAM, THE FEED, THE ARTICLES, ADVERTISERS’ UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY CONTENT ON OR THROUGH YOUR PUBLISHER WEBSITE(S) AND/OR PROPERTY(IES) INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF ENGAGE.IM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ENGAGE.IM’S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THE TOTAL AMOUNT PAID TO PUBLISHER FOR THE PRIOR THREE MONTH PERIOD. PUBLISHER AND ENGAGE.IM SPECIFICALLY STATE AND AGREE THAT THE FOREGOING DAMAGES LIMITATION IS REASONABLE AND ENFORCEABLE. REGARDLESS OF ANY LAW TO THE CONTRARY, PUBLISHER SHALL HAVE NO RIGHT OF ACTION, AND WAIVES ITS RIGHT TO BRING A SUIT, CLAIM, OR PROCEEDING AGAINST ENGAGE.IM MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE OR BECAME KNOWN TO PUBLISHER. PUBLISHER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE ENGAGE.IM NETWORK, CREATIVES, CONTENT, CODE, SCRIPT, PROGRAMS, THE ARTICLES, ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES, CONTENT AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE ENGAGE.IM NETWORK, CREATIVES, THE PROGRAM, CODE, SCRIPT, THE ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ENGAGE.IM HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE ENGAGE.IM NETWORK, CREATIVES, CONTENT, THE PROGRAM, THE ARTICLES, AND/OR THE SERVICE AND DELIVERY OF THE ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS OR SERVICES AND ENGAGE.IM DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY THE PROGRAM OR ANY OF THE ARTICLES WILL BE AVAILABLE TO PUBLISHER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ENGAGE.IM AND PUBLISHER. THE ENGAGE.IM NETWORK, CREATIVES, CONTENT, THE PROGRAM, THE ARTICLES, THE SERVICE AND DELIVERY OF ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. ENGAGE.IM MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE ENGAGE.IM NETWORK, CREATIVES, CONTENT, AND/OR THE PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM ENGAGE.IM AND/OR ANY ADVERTISER BY AND THROUGH THE ENGAGE.IM NETWORK, CREATIVES, CONTENT, AND/OR THE PROGRAM SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.

 

  1. ASSIGNMENT.

Engage.IM may assign the Agreement, or any portion thereof, at its sole discretion. You may not assign, transfer or delegate any of Your rights under the Agreement without the prior written consent of Engage.IM, which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in Engage.IM, at its sole discretion, immediately terminating the Agreement and/or Your participation in any Program, without any liability to Engage.IM. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.

 

  1. SEVERABILITY WAIVER.

If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.

 

  1. MODIFICATION.

The Agreement represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with the Engage.IM Network, the Program, or the terms are in conflict or inconsistent with the Agreement, the Agreement shall take precedence.

 

  1. CONFIDENTIALITY.

"Confidential Information" means any information disclosed by one party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that the receiving party can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure; (b) becomes publicly known and made generally available after disclosure other than through the receiving party’s action or inaction; and/or (c) is in the receiving party possession, without confidentiality restrictions, at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure. Engage.IM’s Program rates and Your Data are considered “Confidential Information.” Neither party shall at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information except in the performance of the services contemplated herein or as expressly allowed under this Agreement; and/or (iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party or as required by applicable law. Each party agrees to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the other party’s Confidential Information. Confidential Information shall at all times remain the personal property of the disclosing party and all documents, electronic media and other tangible items containing or relating to the dislosing party’s Confidential Information shall be delivered to the disclosing party immediately upon the disclosing party's request.

 

  1. FORCE MAJEURE.

Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party.

 

  1. MISCELLANEOUS.

You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Articles, delivery system, Engage.IM Network, and/or the Program. You may not take any action that imposes an unreasonable or disproportionately large load on the Engage.IM infrastructure. You agree that any unauthorized and/or unlawful use of the Engage.IM Network, the Program, Service, Creatives, and/or Code will result in irreparable injury to Engage.IM for which monetary damages would be inadequate. In such event, Engage.IM shall have the right, in addition to any and all other remedies granted or available to it under this Agreement and/or by operation of law, to immediate injunctive relief against You without the requirement to post a bond.

 

  1. RELATIONSHIP.

Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf.

 

  1. NOTICES.

All notices shall be sent to the address submitted by You when You sign up for the Service and, if to Engage.IM, to the address listed in the Contact section of the Engage.IM Network.

 

  1. CHOICE OF LAW AND JURISDICTION.

The Agreement will be governed and construed in accordance with the laws of the State of Florida without giving effect to conflict of laws principles. Publisher and Engage.IM each: (a) hereby irrevocably submits to the exclusive jurisdiction in the Twelfth Judicial Circuit in and for Sarasota County, Florida, or in the United States District Court for the Middle District of Florida for the purposes of any suit, action or proceeding arising out of or relating to the Agreement; and (b) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction or that such proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper.