This E-Planning Publisher Services Agreement (“Agreement”) is entered into by and between you (“Publisher”) and E-Planning S.A., a Uruguayan Company, with offices at Paraguay 2141, ED3, 1ST Floor, Of. 16, Montevideo 11800, Uruguay (“E-Planning”).
1.1 E-Planning Service. Publisher hereby engages E-Planning to provide the E-Planning online advertising services identified herein and as otherwise mutually agreed in writing by the parties (the “E-Planning Services”) relating to Publisher’s and/or its clients advertising inventory (“Publisher Inventory”) which may include websites, mobile applications and/or other digital media properties accessible through the E-Planning Services (the “Publisher Properties”). This Agreement shall provide, among other things, a description of the components of the E-Planning Services that Publisher elects to receive (each such component is a “Program”), the fee to be paid to E-Planning for each Program (each such amount and collectively, the “E-Planning Fee”), and any special terms that are required for Publisher’s participation in the E-Planning Services. Subject to the terms and conditions of this Agreement, E-Planning hereby grants Publisher access to the E-Planning Services during the Term solely for purposes of (a) displaying advertisements on Publisher Properties through the E-Planning Services, and (b) receiving reporting data made available via the E-Planning Services. E-Planning reserves the right to suspend Publisher’s user interface (“UI”) access to the E-Planning Services at any time in its sole discretion to rectify technical, reporting and other unforeseen issues; provided, however, that any such UI access suspension shall not impede the monetization of Publisher Inventory via the E-Planning Services as contemplated hereunder. Publisher hereby grants E-Planning during the Term the right to serve and place advertisements on the Publisher Properties via the E-Planning Services. Publisher hereby agrees to be responsible for any breach of this Agreement by any clients of Publisher who provide or make available any of the Publisher Inventory and Publisher Properties hereunder.
1.2 E-Planning Service Programs. The following provisions apply to the applicable Programs elected by Publisher.
1.2.1 The “Real-Time Bidding” program is defined as E-Planning’s proprietary program which includes real-time bidding (RTB) on E-Planning’s auction for advertising impressions. The Real-Time Bidding program allows Demand Partners to manually or programmatically bid on Publisher Inventory and includes Publisher Inventory accessed by end users on mobile devices, smart phones, tablets and other wireless devices. Each impression served on the Publisher Inventory through Real- Time Bidding will be subject to an auction where the “bids” are derived from E-Planning’s media buying clients, including but not limited to demand side platforms, ad exchanges, agencies, agency trading desks and ad networks (each a “Demand Partner”).
1.2.2 The “Header Bidding” program is defined as E-Planning’s proprietary header bidder solution which gives the Publisher the ability to manage and monetize inventory with a unified approach at the impression level. Publisher acknowledges and agrees that the Header Bidding program includes tools and services that involve Publisher’s ad server, and, notwithstanding anything to the contrary in this Agreement, Publisher is solely responsible for (a) confirming such tools and services are compatible with Publisher’s ad server before enabling, and (b) satisfying Publisher’s guaranteed inventory commitments. E-Planning will not be liable, and Publisher will not hold E-Planning liable, for any guaranteed inventory not achieved by Publisher, including any obligation by Publisher to provide makegoods.
1.3 No Guarantees. Publisher acknowledges and agrees that E-Planning provides no guarantee of volume of impressions delivered, clicks received, or amount of revenue paid or earned under this Agreement.
2.1 Mutual Warranties. Each party represents and warrants to the other party that: (a) it has all necessary rights and authority to enter into, execute and perform its obligations under this Agreement; and (b) the execution of this Agreement and the performance of its respective obligations hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.
2.2 E-Planning Warranties. E-Planning represents and warrants to Publisher that E-Planning will not violate any applicable law or regulation in connection with the performance of the E-Planning Services hereunder.
2.3 Publisher Warranties. Publisher represents and warrants to E-Planning that: (a) each Publisher Property that displays advertisements via the E-Planning Services shall: (i) neither violate any applicable laws or regulations, nor contain Prohibited Content, and (ii) properly categorize the inventory type for the site ID of the Publisher Property in accordance with E-Planning’s then current guidelines; (b) it will not, and will not permit any third party to, directly or indirectly (i) access, launch or activate the E-Planning Services through or from, or otherwise incorporate the E-Planning Services in, any software application, website or other means other than the Publisher Properties, (ii) transfer, sell, lease, syndicate or otherwise sublicense the E-Planning Services, (iii) generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means, (iv) encourage or require end users or any other persons, either with or without their knowledge, to click on the advertisements displayed through the E-Planning Services through offering methods that are manipulative, deceptive, malicious or fraudulent, or (v) pass any data to E-Planning that could be used to personally identify any person without obtaining such person’s consent to pass such data to E-Planning; and (c) it has and will maintain throughout the Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to the Publisher Properties and to permit E-Planning to provide the E-Planning Services to Publisher as contemplated under this Agreement. “Prohibited Content” is defined as indecent, obscene or pornographic material, hate speech, subject matter that a reasonable person would consider highly objectionable, any material which improperly references illegal activities, or any material that is or contains malware, viruses, or other potentially destructive computer programs and security threats.
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, REGARDING ITS RESPECTIVE SERVICES OR PRODUCTS, OR ITS PERFORMANCE OR NON-PERFORMANCE HEREUNDER, INCLUDING NON-INFRINGEMENT, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. E-PLANNING DOES NOT WARRANT THAT THE E-PLANNING SERVICES WILL BE ERROR FREE OR WITHOUT INTERRUPTIONS, NOR DOES E-PLANNING WARRANT THAT THE E-PLANNING SERVICES WILL MEET PUBLISHER’S REQUIREMENTS OR THAT ALL ERRORS OR FAILURES WILL BE CORRECTED. PUBLISHER IS SOLELY RESPONSIBLE FOR THE SELECTION OF THE PROGRAMMATIC PLATFORM OR SERVICES THAT MEET ITS BUSINESS REQUIREMENTS.
PUBLISHER ACKNOWLEDGES AND AGREES THAT E-PLANNING EXTENDS NO WARRANTIES OF ANY NATURE TO OR BY ANY THIRD PARTY (INCLUDING CLIENTS OF PUBLISHER WHICH HAVE ACCESS TO THE E-PLANNING SERVICES) OR WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, PRODUCT OR SERVICE NOT PROVIDED BY E-PLANNING HEREUNDER.
3.1 Publisher Revenue; Payments; Reporting.
3.1.1 “Publisher Revenue” represents revenue earned by Publisher based on sales for impressions served to the Publisher Inventory via the E-Planning Services.
3.1.2 E-Planning shall pay Publisher the Publisher Revenue, net of applicable fees and charges (the “Publisher Payment”), within thirty (30) days following the end of each calendar month.
3.1.3 E-Planning shall provide access to platform reports where Publisher can download a monthly statement which includes the Publisher Revenue and Publisher Payment (the “Monthly Statement”). If Publisher does not raise any issues in writing with regard to any Monthly Statement within fifteen (15) days of receipt, Publisher will forfeit its right to do so. Publisher acknowledges that all numbers displayed in any other reporting apart from the Monthly Statement made available by E-Planning do not represent valid numbers for billing purposes.
3.1.4 To made effectively the payment, E-Planning shall receive an invoice from publisher 10 days before Revenue due.
3.1.5 If the Publisher Revenue for a calendar month is less than $250 USD, no Publisher Payment will be earned by Publisher for that applicable month, and it will be accumulated to the next month.
3.1.6 To the extent Publisher uses other services offered by E-Planning pursuant to a separate agreement, E-Planning reserves the right to offset amounts owed to Publisher against overdue amounts owed to E-Planning after providing reasonable notice.
3.2 Revenue Collection. Any Publisher Revenue that remains unpaid by a Demand Partner for a period greater than one-hundred twenty (120) days of the invoice date shall be deemed an “Outstanding Receivable”, and an adjustment for such Outstanding Receivable may be made in the subsequent Monthly Statement. Publisher shall then have the right to pursue collection of the Outstanding Receivable directly from the applicable Demand Partner, with reasonable assistance from E-Planning upon request. The E-Planning Fees related to an Outstanding Receivable shall only be payable as to the portion of the Outstanding Receivable collected by Publisher or E-Planning from the Demand Partner.
3.3 Inventory Quality. E-Planning tests the quality of advertising impressions from Publisher Properties served through the E-Planning Services. Publisher shall provide E-Planning with complete transparency with respect to the domain for each such Publisher Property at all times during the Term, and shall comply, and reasonably assist upon request, with the Inventory Quality controls and procedures (including whitelisting and blacklisting) that E-Planning may institute. For purposes of this Section, “Inventory Quality Risk” includes, without limitation, (i) invalid traffic, (ii) brand safety violations, (iii) fraud and (iv) advertisement viewability constraints with respect to inventory of publisher impressions. Inventory Quality Risk monitoring is undertaken through the use of MRC accredited third party vendors. If E-Planning detects Inventory Quality Risk on Publisher Properties through use of such tools and services or otherwise, then E-Planning may either (i) not send that impression through to auction, or (ii) suspend traffic for such Publisher Properties.
3.3.1 In the event that E-Planning becomes aware of inventory quality violations with respect to impressions that have been served on a Publisher Property, then: (a) E-Planning shall have the right to withhold Publisher Payments solely for the applicable impressions until E-Planning has completed its good faith investigation with respect to such impressions and concluded any negotiation with the applicable Demand Partners with respect to such impressions; and (b) where E-Planning determines that there have been inventory quality violations for all or a portion of such impressions (the “Fraudulent Impressions”), E-Planning shall reduce pending Publisher Payments by the amount otherwise payable to Publisher for the Fraudulent Impressions and pay Publisher the resulting net amount in the ordinary course.
3.3.2 If there are Fraudulent Impressions served to E-Planning on a repeated basis with respect to one or more Publisher Properties, E-Planning shall have the right to immediately suspend traffic for some or all Publisher Properties until the levels of Fraudulent Impressions have been reduced to acceptable levels, or to immediately terminate this Agreement upon written notice to Publisher, notwithstanding the provisions of Section 4.2 below.
3.4 Taxes. Publisher will pay all taxes (including excise, sales, use, consumption, value-added or withholding taxes), customs or import duties, or any other levies, tariffs, duties or governmental fees that are due or payable in connection with this Agreement (“Taxes”), with the exception of taxes on E-Planning’s net income. Each party agrees to cooperate in good faith with respect to reasonable requests from the other party regarding Tax-related forms, documentation or other information relating to this Agreement that may be necessary or appropriate.
4.1 Term. The initial term of this Agreement shall begin as of the Effective Date and shall continue as set forth in the Principal Terms above (the “Initial Term”), unless earlier terminated in accordance with the terms of this Agreement. At the end of the Initial Term and each renewal term thereafter (together with the Initial Term, the “Term”), the term of this Agreement shall automatically renew for consecutive twelve (12) month periods (each a “Renewal Term”) unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the date of the then existing Renewal Term.
4.2 Termination for Cause. A party shall have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. Termination of this Agreement by either party for breach will be a non-exclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
4.3 Effects of Termination. In the event of termination of this Agreement, Publisher shall immediately cease using the E-Planning Services and shall destroy or return to E-Planning all copies in any form of E-Planning’s Confidential Information and, upon request, will certify in writing to E-Planning that such delivery or destruction has been fully effected. The following provisions will survive termination of this Agreement: Sections 3, 4.3 and 7.3 through 13 of this Agreement.
5.1 Except as necessary in furtherance of the E-Planning Services as provided for hereunder, neither party shall use the other party’s name, marks and logos in marketing materials, in group press releases with other customers and on their website without the prior written consent of the other party (email being sufficient).
5.2 The parties shall work together in good faith to issue a press release within sixty (60) days of the Effective Date, in a form mutually agreed by the parties announcing the business relationship between them.
6.1 Privacy Policy. Publisher shall abide by a privacy policy consistent with applicable laws and post such privacy policy on each web page of each Publisher Property where data gathering for interest-based advertising occurs. Such privacy policy shall include: (a) clear notice of Publisher’s use of methods to collect, use and share user data, including E-Planning’s and its Demand Partners’ methods; (b) a statement that data may be collected for interest-based advertising or cross-app advertising purposes on the Publisher Property; (c) a description of the types of data, including personally identifiable information, precise location data, or personal directory data, that are collected for interest-based advertising or cross-app advertising purposes on the Publisher Property; (d) an explanation of the purposes for which data is collected by, or will be transferred to, third parties; (e) a disclosure that statistical identification or other non-cookie technologies (such as eTags and web or browser cache) may be used by third parties on the Publisher Property, including the fact that browser settings that block cookies may have no effect on such technologies; (f) a disclosure of the fact that data collected from a particular browser or device may be used with another computer or device that is linked to the browser or device on which such data was collected; and (g) a conspicuous link to, or description of how to access, an opt-out mechanism for interest-based advertising, cross-app advertising, statistical identification, and cross-device targeting.
6.2 Privacy Compliance Requirements.
6.2.1 Each party agrees that it shall comply with its respective obligations under applicable data protection and privacy laws, regulations, and industry self-regulatory rules, codes and guidelines, including, without limitation and as applicable, U.S. laws; the rules, codes and guidelines of the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI); and to the extent applicable: (a) the laws implementing Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC, and/or (b) Regulation (EU) 2016/679 (General Data Protection Regulation).
6.2.2 Publisher agrees that it is responsible and liable for providing notice and obtaining any required user consent on behalf of itself, E-Planning and all applicable Demand Partners with respect to (a) passing personal information, precise geo location, user device identification or any sensitive information of its users to E-Planning and Demand Partners, (b) collecting and using statistical identification of its users or other non-cookie technologies (such as eTags and web or browser cache), (c) collecting and using information across web browsers and devices, and (d) first- and third-party cookies, including without limitation, ensuring users are clearly informed about third-party cookies and promptly notifying E-Planning in the event a user opts out of having third-party cookies dropped. E-Planning will cooperate with Publisher in complying with such requirements.
6.2.3 If applicable, Publisher agrees to notify European users from whom it collects personal data and shares with E-Planning via the E-Planning Services regarding the type of personal data collected, the purpose thereof, the categories of individuals who will have access to the personal data, and the identity of the data controller. The parties further agree that for the purposes of the E-Planning Services: (i) Publisher is a “data controller” for any personal data that E-Planning may process on behalf of Publisher, and (ii) E-Planning is a “data processor” providing the E-Planning Service and each Program thereof on behalf of Publisher in respect of such personal data. E-Planning will process such personal data, if any, only as instructed by Publisher and to perform the obligation stipulated in this Agreement (as may be amended by the parties from time to time).
6.2.4 Publisher shall not include or launch any Publisher Property on any of the E-Planning Services if such Publisher Property is directed at U.S. children under 13 as contemplated by the Children’s Online Privacy Protection Law, as amended (“COPPA”), and Publisher shall flag within the E-Planning Services or inform E-Planning in writing prior to launching any of such Publisher Properties on any of the E-Planning Services. Publisher shall not pass to E-Planning or its Demand Partners any personal information of children under 13 as defined under COPPA.
6.2.5 If any Publisher Property is a mobile application, then Publisher must clearly and conspicuously post notice, or a link to notice, in any store or on any website or otherwise where the mobile applicable may be acquired that contains: (a) a statement of the fact that data may be collected for cross-app advertising; (b) a description of types of data, including any personally identifiable information, precise location data, or personal directory data, that are collected for cross-app advertising purposes; (c) an explanation of how, and for what purpose, the data collected will be used or transferred to third parties; and (d) a conspicuous link to or description of how to access an opt-out mechanism. If notice cannot be provided in or around advertisements, then Publisher should make arrangements to provide notice within the application or on the landing page of the advertisement.
6.3 Data Ownership and Use. Publisher retains all right, title and interest in and to all data derived from the Publisher Inventory or the publication of advertisements therein (“Publisher Data”). Publisher Data shall not include any data provided or made available by E-Planning, its Demand Partners or third-party service providers (“E-Planning Data”). E-Planning retains all right, title and interest in and to all E-Planning Data. Publisher acknowledges that E-Planning and Demand Partners may drop cookies on its users in connection with the E-Planning Services. Publisher hereby grants E-Planning and its Demand Partners a limited, revocable, royalty- free right to collect, use and share user data (including Publisher Data) that is passed by Publisher or collected by E-Planning or Demand Partner (a) in connection with the delivery and optimization of the E-Planning Services during the Term, (b) to use such data for reporting purposes during and after the Term, and (c) in response to a legal demand or process during and after the Term.
Each party shall treat as proprietary and shall maintain in strict confidence all Confidential Information of the other party and shall not, without the express prior written consent of such other party, disclose such Confidential Information or use such Confidential Information other than in furtherance of its obligations hereunder. “Confidential Information” shall mean any information of the disclosing party which is, or should reasonably be understood to be, confidential or proprietary to the disclosing party or its client, including, but not limited to, information disclosed between parties, either directly or indirectly, in writing, drawing, orally, or electronically: (i) related to technical know-how and technological innovations; (ii) related to operations, financial status, or sales and business plans and strategies; (iii) Intellectual Property (as defined below). Notwithstanding the foregoing, Confidential Information shall not include information which the receiving party can demonstrate with written documentation: (a) is known to the receiving party at the time of the disclosure; (b) has become publicly known through no wrongful act of the receiving party; (c) has rightfully been received from a third-party which the disclosing party has authorized to make such disclosures; or (d) was disclosed pursuant to a court order or similar governmental authority, provided, however, that the receiving party shall provide prompt notice of such order to the disclosing party to enable the disclosing party to act to prevent or restrict the ordered disclosure. The terms of this Agreement shall be deemed Confidential Information of E-Planning.
Each party acknowledges and agrees that: (a) the patents, trade secrets, know-how, copyrights, trademarks, logos, service marks, and moral, authorship and other proprietary rights to and in any service, product, technology, platform, source code, algorithms, invention or business method (“Intellectual Property”) of the other party shall remain the sole property of that party; (b) it shall at no time contest the validity of the other party’s Intellectual Property during the Term; (c) it shall not copy, modify, distribute, transfer, sell, reproduce, publish, perform, reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain any source code from, prepare derivative works or otherwise use the Intellectual Property of the other party except as explicitly set forth in this Agreement; and (d) with respect to Publisher, it shall not allow any third party or unauthorized user or computer system to access or use the E-Planning Services and it will take all reasonable steps to protect the E-Planning Services from unauthorized access or use. Publisher acknowledges that the E-Planning Services and Intellectual Property of E-Planning (including all methods, concepts or techniques utilized therein and improvements or enhancements thereto, regardless of the party or parties responsible for such improvements and/or enhancements) and its related documentation are commercially valuable to E-Planning and constitute E-Planning’s proprietary information and are to be treated as Confidential Information of E-Planning. Except for right to receive or access the E-Planning Services selected by Publisher, no right in or title to the E-Planning Services or Intellectual Property of E-Planning or any improvements thereto shall be deemed to have been vested in or transferred to Publisher under the terms of the Agreement. All title to and ownership of the E-Planning Services, and the Intellectual Property rights therein or associated therewith, remain with E-Planning. Publisher acknowledges that E-Planning shall exclusively own and may use any ideas, concepts, modifications, suggestions, improvements, enhancements and information arising out of Publisher’s use of the E-Planning Services.
E-Planning agrees to indemnify, defend and hold harmless Publisher and its officers, directors, shareholders, corporate affiliates, agents, successors and assigns (“Publisher Indemnified Parties”) from and against any third-party claim, suit or proceeding (“Claim”) against the Publisher Indemnified Parties arising out of, related to, or alleging: (i) infringement of any copyright or trademark by the E-Planning Service; or (ii) any violation by E-Planning of applicable privacy laws. Publisher agrees to indemnify, defend and hold harmless E-Planning and its officers, directors, shareholders, corporate affiliates, agents, successors and assigns (“E-Planning Indemnified Parties”) from and against any Claim against the E-Planning Indemnified Parties arising out of, related to, or alleging: (i) any violation by Publisher of applicable privacy laws or Publisher’s breach of Sections 7.1 (Privacy Policy) and 7.2 (Compliance with Privacy): (ii) any violation of any Publisher Property of applicable laws or the inclusion of any Prohibited Content on any Publisher Property; or (iii) infringement of any intellectual property right of a third-party, or misappropriation of any trade secret, by Publisher or its clients. Notwithstanding anything to the contrary herein, the indemnification obligations of each party do not apply to the extent that a Claim arises out of the other party’s violation of this Agreement. In all cases in which a party seeks indemnification and/or defense hereunder, the indemnitee shall provide the indemnitor with prompt written notice of such Claim, reasonable cooperation and assistance to the indemnitor in connection with such Claims, and full control and authority to investigate, defend and settle such Claims; provided, however, that shall require prior approval by the indemnitee. If any of the E-Planning Services becomes, or in E-Planning’s opinion is likely to become, the subject of an infringement Claim under this Agreement, E-Planning may, at its sole option and expense, either (i) procure for Publisher the right to continue using the applicable E-Planning Services, (ii) replace or modify the applicable E-Planning Services so that it becomes non-infringing, or (iii) if clauses (i) and (ii) are not commercially practicable, terminate this Agreement upon written notice to Publisher. Notwithstanding the foregoing, E-Planning will have no obligation with respect to any infringement Claim based upon (i) any use of the E-Planning Services not in accordance with this Agreement or for purposes not intended by E-Planning, (ii) any use of the E-Planning Services in combination with other products, equipment, or software not supplied by E-Planning, or (iii) any modification of the E-Planning Services by any person other than E-Planning or its authorized agents or subcontractors. THIS SECTION STATES E-PLANNING’S ENTIRE LIABILITY AND PUBLISHER’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS AND ACTIONS.
EXCEPT WITH RESPECT TO EITHER PARTY’S CONFIDENTIALITY, INDEMNIFICATION AND PAYMENT OBLIGATIONS, OR FRAUD AND WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE E-PLANNING FEE DUE UNDER THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF USE OR LOST DATA) OF THE OTHER PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL E-PLANNING BE LIABLE FOR THE ACTS OR OMISSIONS OF ITS DEMAND PARTNERS, PUBLISHER’S DEMAND PARTNERS OR CLIENTS, PUBLISHER’S ACTIVITIES WITH RESPECT TO OTHER PUBLISHERS WHO USE THE E-PLANNING SERVICES, OR ANY THIRD PARTY SERVICE PROVIDERS OF E-PLANNING OR PUBLISHER. THE PARTIES MUST FILE ANY ACTION ARISING DIRECTLY OR INDIRECTLY FROM THIS AGREEMENT NO LATER THAN ONE (1) YEAR AFTER THE CLAIM HAS ACCRUED. THE PARTIES WAIVE THE RIGHT TO FILE AN ACTION ARISING DIRECTLY OR INDIRECTLY FROM THIS AGREEMENT UNDER ANY LONGER STATUTE OF LIMITATIONS.
This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, USA without reference to its conflict of laws principles. Jurisdiction and venue for all disputes hereunder will be exclusively in courts in the state of New York, USA, and the parties hereby expressly agree to such jurisdiction and venue.
This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements or communications, relating to the subject matter hereof. This Agreement shall not be modified except by a written agreement between the parties; provided, however, that E-Planning may modify this Agreement solely to address changes to the E-Planning Services that are generally applicable to E-Planning’s publisher clients upon no less than thirty (30) days’ prior written notice to Publisher, and Publisher may terminate this Agreement in writing within the notice period if Publisher is unable or unwilling to agree to the changes set forth in such change notice (and if it does not timely provide such notice, Publisher shall waive its right to object to such change notice). The failure of either party to enforce strict performance by the other party of any provision of the Agreement or to exercise any right hereunder or thereunder shall not be construed as a waiver of that party’s right. In the event that any provision of the Agreement is held invalid by a court with jurisdiction over the parties, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of the Agreement shall remain in full force and effect. The parties are each independent contractor, and nothing in this Agreement is intended to create a partnership, joint venture or agency relationship between them. The rights and obligations of each party under the Agreement shall not be assigned without the prior written approval of the other party, which approval shall not be unreasonably withheld; provided, however, that either party may assign the Agreement without such consent to a corporate affiliate or in connection with a change of control or sale of substantially all of its assets, subject to the assigning party providing prior written notice of such assignment. Any attempted assignment without consent where consent is required shall be void. Subject to the foregoing, each party’s rights and obligations shall inure to the benefit of their respective successors and permitted assigns. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. This Agreement may be executed via a recognized electronic signature service or delivered by facsimile transmission, or may be signed, scanned and emailed, and any such signatures shall be treated as original signatures for all applicable purposes. Any notices given under this Agreement shall be deemed to be effectively given (i) when delivered personally, (ii) five (5) days after being placed in the mail, postage prepaid, certified, registered or similar mail status, or (iii) one (1) day after being sent via recognized express courier service, in each case, to the recipient’s address specified in this Agreement or such other address as specified by the parties in writing, with a copy to the attention of General Counsel for notices sent to E-Planning.