Advertising Terms & Conditions
Advertising Terms and Conditions
The following agreement governs your ability to advertise through the Apollo Streams Software (as defined below) and is an agreement between Apollo Streams, Inc, (“Publisher”), a Utah corporation with offices located at 11382 North 5710 West, Highland, UT 84003 and you (“You or Advertiser”).
By completing the registration process, You agree to be bound by this Agreement. Your providing Advertising Content (as defined below) constitutes your acceptance of these Terms and Conditions. These Terms and Conditions may be modified from time to time by Apollo Streams and the continued funding of Your advertising account and providing Advertising Content shall constitute acceptance by You of the modified Terms and Conditions.
WHEREAS, Publisher has developed Apollo Streams Software (as defined below), which enables schools, teams, and similar organizations to record and live stream athletic and other events that they have the right to broadcast (“Content”) and to include advertisements in such Content;
WHEREAS, Publisher has entered into license agreements with schools, teams, and similar organizations (“Licensees”) pursuant to which Publisher licenses the licensee to use Apollo Streams Software to record, live stream, and otherwise disseminate video of the licensee’s events and the licensee authorizes Publisher to act as its exclusive agent for the purpose of contracting with advertisers to advertise in such Content; and
WHEREAS, Advertiser desires to purchase from Publisher, and Publisher desires to sell to Advertiser, advertising space in Content for advertisements promoting Advertiser’s goods, services, and brand on the terms described herein.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Definitions. Capitalized terms not otherwise defined in the Agreement have the meanings set out in this Section.
- “Apollo Streams Software” means Publisher’s proprietary Apollo Streams Software, which enables recording, editing, enhancing, and live streaming athletic and other events, with features including replay capture, highlight upload, zoom, multiple camera-angle use, customizable scoreboards, and features to facilitate and track monetization of Content through advertising and sponsorship.
- “Content” means the athletic or other events that Licensee records using Apollo Streams Software and live streams, including any excerpt, highlight, or replay reproduced or displayed during such live stream.
- “Advertiser Content” means any advertisement, logo, or other content submitted by Advertiser to Publisher for display in Content.
- “Intellectual Property” means any and all trademarks, service marks, trade dress, trade names, brand names, logos, corporate names, and domain names, and other similar designations of source; original works of authorship and related copyrights and any other intangible property in which any party holds proprietary rights, title, interests, or protections, however arising, pursuant to the laws of the US, including all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.
- “Effective Date” means the date Advertiser enters into this Agreement by completing the online registration
Agreement to Purchase and Sell Ad Rights.
- Purchase and Sale. Subject to the terms and conditions of this Agreement, during the Term (as defined in Section 1), Publisher shall sell to Advertiser, and Advertiser shall purchase from Publisher, the right to display Advertiser Content in Content as provided in this Agreement.
- Use and Obligations of Advertising or Media Agency. Any obligation of Advertiser pursuant to this Agreement may be satisfied by any advertising or media agency duly appointed by Advertiser to act on Advertiser’s behalf (the “Ad Agency”) and shall be deemed to be an obligation of Advertiser and the Ad Agency. Additionally, any right of Advertiser pursuant to this Agreement may be exercised by the Ad Agency and shall be deemed to be a right of Advertiser and the Ad Agency.
- Non-Exclusivity. Nothing herein is intended nor shall be construed as creating an exclusive arrangement between Advertiser and Publisher. This Agreement will not restrict (a) Advertiser from advertising in Content created by other media or (b) Publisher from selling advertising rights to any third parties.
- Submission. Advertiser shall initiate all purchases of advertising by initially funding and subsequently replenishing its prepaid advertising account and by uploading its Advertising Content. Advertiser shall also identify as part of the process those Licensees in whose Content Advertiser wishes Advertiser Content to be displayed
- Acceptance or Rejection. Publisher has the right, in its sole discretion, to accept or reject any Advertiser Content. Additionally, Licensee has the right to reject Advertiser Contentat any time.
- Publisher Policies. Publisher’s advertising policies for Advertiser Content shall be available online at www.apollostreams.com, including technical specifications, the manner of transmission to Publisher, submission deadlines, content restrictions, and any other compliance policies for Advertiser Content, as may be implemented or amended by Publisher from time to time (“Publisher Policies”). Publisher shall not be required to publish any Advertiser Content that is not received in accordance with such policies. Publisher will not be liable for any form of damage, loss, costs, injury, or harm sustained by Advertiser or any other party in consequence of or resulting directly or indirectly out of any delay or error in, or omission, cancellation, publication, or transmission of, any Advertiser Content.
- Positioning. Positioning of Advertiser Content within Content is at the sole discretion of Publisher.
Price and Payment.
- Price. Advertiser shall purchase advertising from Publisher at the prices set forth online at www.apollostreams,com (“Prices”).
- Taxes. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Advertiser under this Agreement. Advertiser shall be responsible for all such charges, costs, and taxes, except for any taxes imposed on, or related to, Publisher’s income, revenues, gross receipts, personnel, real or personal property, or other assets.
- Unless other arrangements are made in writing between Advertiser and Publisher, Advertiser shall pay for advertisements displayed in Content via credit card through the Apollo Streams website. Advertiser agrees to a minimum of $1,500 to initiate the account.
- Fees shall be deducted in real time as logos or commercial advertisement are displayed in Content, based on actual online viewers logged into the live stream at the time the advertisement or the logo is displayed until Advertiser’s budget is depleted. Upon Advertiser’s replenishment of its budget, Publisher shall resume the display of logos or commercial advertisements in Content.
- Publisher shall operate an online portal where Advertiser may review its account contributions, ad views, withdrawals, and overall account status located at www.apollostreams,com.
- Advertising fund balances not used during any given season or event will carry over to the following year or other events as allocated by the Advertiser.
- Publisher does not guarantee that any particular event will be live-streamed by Licensee, nor does Publisher guarantee any level of viewership for any Content.
- Delivery. Advertiser shall deliver all Advertiser Content to Publisher in final format in accordance with the technical specifications set forth in the then-current Publisher Policies. Publisher is not responsible for making corrections to Advertiser Content.
- Clearances. Advertiser shall be responsible for obtaining all rights, licenses, permissions, releases, approvals, clearances, and credit or attribution information, and for payment of all royalties, license, or reuse or other fees required for Advertiser to create any Advertiser Content and grant Publisher the right to reproduce, print, and distribute it in Content.
- Advertiser must ensure that all Advertiser Content conforms to the then-current Publisher Policies when submitted to Publisher. Publisher reserves the right to reject any Advertiser Content (regardless of whether such Advertiser Content was previously accepted) in its sole discretion.
- Right to Reject Advertiser Content. Advertiser Content is subject to Publisher’s and Licensee’s approval. Publisher or Licensee reserves the right to reject or cancel any Advertiser Content or Insertion Order at any time, for any reason whatsoever (including belief by Publisher that placement of Advertiser Content, may subject Publisher or Licensee to criminal or civil liability).
- Publisher shall notify Advertiser as soon as reasonably possible of any objection to any Advertiser Content. Publisher may, in its sole discretion, (i) provide Advertiser with the opportunity to amend or replace rejected Advertiser Content, provided that Advertiser meets any applicable submission deadlines, (ii) allow Advertiser to substitute previously run Advertiser Content, or (iii) run a public service announcement or house advertising in place of any rejected Advertiser Content.
- Publisher’s License. Subject to the terms and conditions of this Agreement, Advertiser grants Publisher a limited, royalty-free, non-exclusive, non-transferable, and non-sublicensable license to reproduce, publish, and distribute Advertiser Content, including all of Advertiser’s Intellectual Property contained therein, in Content in accordance with the terms of this Agreement. Other than this express license, Advertiser grants no right or license to Publisher by implication, estoppel, or otherwise to any Advertiser Content or Advertiser’s Intellectual Property.
Representations, Warranties, and Certain Covenants.
Mutual Representations, Warranties, and Covenants. Each Party represents, warrants, and covenants to the other that:
- it is a legal entity duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, organization, or formation;
- it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement;
- it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
- the execution of this Agreement by its Representative whose signature is set forth at the end hereof and the delivery of this Agreement by the Party has been duly authorized by all necessary action of the Party;
- this Agreement has been executed and delivered by the Party and (assuming due authorization, execution, and delivery by the other Party) constitutes the legal, valid, and binding obligation of the Party, enforceable against the Party in accordance with its terms; and
- it is now and through the Term shall remain in compliance with all laws applicable to the performance of its obligations under this Agreement or any Accepted Insertion Order.
Advertiser Representations, Warranties, and Covenants. Advertiser represents, warrants, and covenants to Publisher that:
- Advertiser holds the necessary rights to grant the rights to Publisher granted herein to use the Advertiser Content and display of the same in Content for the purpose of this Agreement; (ii) the use, reproduction, distribution, or transmission of Advertiser Content will not violate any civil or criminal laws, rules, or regulations or any rights of any third parties including such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity; (iii) Advertiser Content will not advertise or enable the unlawful sale of alcohol, tobacco, or firearm products or any unlawful gambling activity or lottery; and (iv) Advertiser Content complies with all applicable laws, rules, and regulations;
- Advertiser Content delivered to Publisher will not contain any viruses, time bombs, or other devices capable of disabling or interfering with any computer systems or software; and
- Advertiser shall use the advertising solely for its own benefit and not for the placement of any third-party advertising.
Publisher Covenants. Publisher shall not, and shall not grant any third party the right to:
- Republish or otherwise reuse, edit, modify, or create any derivative works of any Advertiser Content or component thereof in any media now in existence or hereafter developed, whether or not combined with its own materials or material of others.
- Alter or delete any Advertiser trademark or copyright notice included in any Advertiser Content.
- NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 5, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 5 OF THIS AGREEMENT.
- Mutual Representations, Warranties, and Covenants. Each Party represents, warrants, and covenants to the other that:
Advertiser Indemnification Obligations. Advertiser shall defend, indemnify, and hold harmless Publisher and its employees, officers, directors, agents, affiliates, successors, and permitted assigns (collectively, “Publisher Indemnified Party”), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), arising out or resulting from any claim relating to
- any Advertiser Content displayed, reproduced, and distributed by Publisher or Licensee pursuant to this Agreement.
- breach by Advertiser of any representation, warranty, covenant or other obligations set forth in this Agreement or any Accepted Insertion Order; or
Publisher Indemnification Obligations. Publisher shall defend, indemnify, and hold harmless Advertiser and its employees, officers, directors, agents, affiliates, successors, and permitted assigns (collectively, “Advertiser Indemnified Party”), against any and all Losses, arising out of or resulting from any third-party claim alleging:
- breach by Publisher of any material obligations set forth in this Agreement or any Accepted Insertion Order; or
- gross negligence or more culpable act or omission of Publisher Indemnifying Party (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement.
Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, neither Party is obligated to indemnify or defend the other Party or any of its indemnified parties against any Losses arising out of or resulting from the other Party’s:
- willful or reckless acts or omissions; or
- bad faith failure to comply with any of its obligations set forth in this Agreement.
- Indemnification Procedures. A party seeking indemnification under this Section 6 (the “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure and (b) reasonable cooperation in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle, or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
- EXCLUSIVE REMEDY. THIS SECTION 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION
- Advertiser Indemnification Obligations. Advertiser shall defend, indemnify, and hold harmless Publisher and its employees, officers, directors, agents, affiliates, successors, and permitted assigns (collectively, “Publisher Indemnified Party”), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), arising out or resulting from any claim relating to
Limitation of Liability; Disclaimer of Warranties.
Limitation of Liabilities.
- NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION OR LIABILITY FOR BREACH OF CONFIDENTIALITY OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE, OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- MAXIMUM LIABILITY. EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO PUBLISHER PURSUANT TO THIS AGREEMENT IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Limitation of Liabilities.
- Confidentiality. From time to time during the Term, either Party (as “Disclosing Party”) may disclose or make available to the other Party (as “Receiving Party”) information about its business affairs and services, confidential information, and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party or any of its directors, officers, employees, agents, and advisors (“Representatives”); (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable law. The Receiving Party shall, for three years from receipt of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any third party, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 8 caused by any of its Representatives.
- Term. The term of this Agreement commences on the Effective Date and shall continue thereafter until terminated by either party in writing or as otherwise provided under this Agreement (the “Term”).
Mutual Right to Terminate. Either Party may terminate this Agreement upon written Notice (as defined in Section 3) to the other Party:
- if the other Party breaches any provision of this Agreement or any Accepted Insertion Order (other than Advertiser’s obligation to pay any amount when due) and either the breach cannot be cured or, if the breach can be cured, it is not cured by the other Party within thirty (30) days after its receipt of written Notice of such breach;
- if the other Party (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
- in the event of a Force Majeure Event (as defined in Section 13) as provided in Section 10.13(a).
- Advertiser’s Right to Terminate Without Cause. Advertiser may terminate this Agreement on five business days’ prior written Notice to Publisher.
- Publisher’s Right to Terminate. Publisher may terminate this Agreement upon written Notice to Advertiser.
Effect of Termination.
- Expiration or termination of this Agreement will not affect any rights or obligations that: (i) are to survive the expiration or earlier termination of this Agreement; and (ii) were incurred by the Parties prior to such expiration or earlier termination.
- Upon the expiration or earlier termination of this Agreement, each Party shall promptly:
- destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information;
- permanently erase all of the other Party’s Confidential Information from its computer systems; and
- certify in writing to the other Party that it has complied with the requirements of this clause.
- Subject to Section 6, the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of either Party’s rights, remedies, or defenses under this Agreement, at law, in equity, or otherwise.
- Entire Agreement. This Agreement, together with any Accepted Insertion Orders, constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- Survival. Subject to the limitations and other provisions of this Agreement, (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement for a period of twelve (12) months after such expiration or termination; and (b) Section 3, Section 8, and Section 10 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of twelve (12) months after such expiration or termination.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect the enforceability of any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendment. No amendment to this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party.
- Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Cumulative Remedies. Except as set forth in Section 6, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
- Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 8 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section.
- Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
- Subject to Section 10(b), this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement excepting only Licensees in whose Content Advertiser has advertised.
- The Parties hereby designate the Advertiser Indemnified Parties and Publisher Indemnified Parties as third-party beneficiaries of Section 6 of this Agreement having the right to enforce Section
- Choice of Law. This Agreement and all Insertion Orders and other related documents are governed by, and shall be construed in accordance with, the laws of the State of Utah, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Utah.
- Choice of Forum. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Utah in each case located in Salt Lake City and Salt Lake County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
- No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; and (e) telecommunication breakdowns and power outages or shortages.
- The Impacted Party shall give Notice within ten (10) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of ten (10) days following written notice given by it under this Section 10.13(b), either Party may thereafter terminate this Agreement upon ten (10) days’ written Notice.
- Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Publisher is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
- Attorney’s Fees. In the event any party hereto incurs legal expenses to enforce or interpret any provision of this Agreement, the prevailing party will be entitled to recover such legal expenses, including, without limitation, attorney’s fees, costs and disbursements, in addition to any other relief to which such party will be entitled.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same agreement.