Renuant Advertising Agreement

 
 

 

 

RENUANT ADVERTISER AGREEMENT

 

This Renuant Advertiser Agreement (this “Agreement”) is effective as of the date of the signed insertion order (the “Effective Date”) and is by and between the entity named above that executes this Agreement (the “Advertiser”) and Renuant, LLC (“Renuant”, and together with Advertiser, the “Parties”, and each, a “Party”).  Any Affiliate of Renuant may provide services hereunder and in such case, all obligations of, and references to, Renuant in this Agreement shall apply to Renuant and such Affiliate severally and jointly.  Renuant represents and warrants it has the authority to bind Affiliate to this Agreement, and such Affiliate will be bound to all the terms of this Agreement whenever it acts pursuant to this Agreement. For purposes of this Agreement, “Affiliate” means any entity directly or indirectly controlled by, controlling, or under common control with Renuant. Renuant and Advertiser agree that this Agreement sets forth the terms and conditions under which Advertiser will be granted access to and use of the Platform (as defined below).

1.0   DEFINITIONS.

1.1.          “Advertiser Account” means the password-protected account through which Advertiser accesses the Platform and manage campaigns.

1.2.          “Advertiser Content” means the ads, creative, text, content, Advertiser Marks, Advertiser URLs, and other materials provided by Advertiser for use in Advertiser Ads.  Advertiser Content will be provided by Advertiser through the Platform or otherwise and may be supplemented, modified, or deleted by Advertiser through the Platform.

1.3.          “Advertiser Marks” means the trade names, trademarks, service marks, logos, and brand elements of Advertiser or other parties provided by Advertiser under the terms of this Agreement.

1.4.          “Advertiser-Provided Data” means unidentified data provided by Advertiser to Renuant pursuant to this Agreement, including conversion data, cost per customer acquisition, or other data provided to support Renuant’s assessment and management of traffic and Engagement quality, analysis of Platform metrics and other data analysis and compilation. 

1.5.          “Advertiser Sites” means the web or mobile properties or content owned, operated, or controlled by Advertiser or otherwise linked to or through Advertiser Ads.    

1.6.          “Campaign Data” means non-personally identifiable information collected or generated while displaying Advertiser Ads, generating an Engagement and all other Platform activities, including, but not limited to, data on impressions, clicks, leads, calls, and conversion rate, cost-per-click, and cost-per-consumer-data-post. 

1.7.          “Consumer” means a person that completes an Engagement.

1.8.          “Consumer Data” means data provided by a Consumer on a voluntary basis while completing an Engagement, which may include Consumer’s personally identifiable information such as name, address, telephone number, or email address as well as more general information applicable to an Advertiser Product. For the avoidance of doubt, Consumer Data does not include information provided by Consumers to Advertiser after an Engagement took place.

1.9.          “Engagement” means an action taken by Consumer to select Advertiser or an Advertiser Ad.  Such action may include, but not be limited to, clicking on an Advertiser Ad (click), completing and providing information to Advertiser (lead), calling the Advertiser (inbound call), or a call transfer from Renuant to Advertiser (warm transfer).

1.10.       “Engagement Fee” means the actual fee charged to Advertiser for an Engagement. 

1.11.       “Intellectual Property” includes trade secrets, copyrights, trademarks, patents, logos, service marks, inventions, technology, Confidential Information, and other proprietary materials.

1.12.       “Renuant Content” means the content provided or created by Renuant for use pursuant to this Agreement, either alone or in combination with Advertiser Content, including graphics, artwork, copy, URLs, ads, forms, articles, flash, text files, videos, Renuant Marks and other materials provided by Renuant.  For the avoidance of doubt, Renuant Content does not include consent language or any Advertiser Content even if combined with Advertiser Content.

1.13.       “Renuant Marks” means the trade names, trademarks, service marks, logos, and brand elements of Renuant.

1.14.       “Renuant Materials” means the Platform, associated automated tools and Renuant Content (excluding all Advertiser Materials, Advertiser Sites, and Publisher Sites).

1.15.       “Renuant Sites” means the websites, web or mobile properties and online services owned or operated by Renuant.

1.16.       “Platform” means Renuant’s proprietary internet platform made available to Advertiser subject to the terms of this Agreement and through which Advertiser may create and manage advertising campaigns, bid on Engagements, and other tools, including but not limited to, an administrative portal with tools and reports to review activity and performance of campaigns.

1.17.       “Platform Sites” means the Publisher Sites and the Renuant Sites.

1.18.       “Prohibited Content” means content that (i) contains or promotes obscenity, obscene language, pornography, violence, firearms, defamation, hate speech, illegal activities, or which a reasonable person would find highly objectionable and/or (ii) contains viruses, worms, Trojan horses, malware, or other potentially destructive computer programs. 

1.19.       “Publisher” means a third party utilizing the Platform on its Publisher Site(s).

1.20.       “Publisher Sites” means the websites, web or mobile properties, or online services and content owned, operated or controlled by Publisher.

 

2.        PLATFORM.

2.1.          Platform License.  Subject to the terms and conditions of this Agreement and during the Term of this Agreement only, Renuant hereby grants to Advertiser a non-exclusive, non-transferable, non-sublicensable right and license to access the Advertiser Account(s) and use the Platform solely for the purposes of (i) establishing and managing campaigns, including bidding on and purchasing Engagements, and (ii) using the automated tools and reports available on the Platform. Renuant does not grant Advertiser any other license, express or implied, and Renuant reserves all rights not expressly granted hereunder, including the right to amend, update or discontinue the Platform at any time.

2.2.          Restrictions. Advertiser acknowledges that the Platform and other materials to which Renuant may grant Advertiser access herein may constitute and contain valuable trade secrets or other Intellectual Property or Confidential Information.  Advertiser’s right to access the Platform is limited solely to Advertiser and is non-assignable. Advertiser will not reproduce, distribute, modify, copy, prepare derivative works of, translate, reverse engineer, decompile, disassemble, rent, or lease the Renuant Materials or any Intellectual Property of Renuant. Under no circumstances may Advertiser use or access the Platform for any purpose other than as expressly permitted herein. Advertiser agrees that it will not, and will not induce or authorize any third party to, use any automated means or form of scraping or data extraction to access, query or otherwise collect information from the Platform or Platform Sites, except as expressly permitted by Renuant.

2.3.          Engagement Fees. Advertiser will select and bid on Engagements by specifying the amounts it is willing to pay for certain Engagements in the Platform.  Advertiser will set a base bid and may define additional criteria to be used as modifiers to its bids, calculated on a multiplicative basis to the base bid (“Bids”).  Bid amounts are subject to Renuant’s policies posted within the Platform for establishing minimum bids and bid increments, including establishing separate minimum bids and bid increments for different types of campaign attributes and Engagements.

 

3.        ADVERTISER ACCOUNT; ADS. 

3.1.          Advertiser Account.  Advertiser may be provided with one or more Advertiser Accounts.  Advertiser shall not share with any unauthorized third party any user account identification, account number, or password for its Advertiser Account(s), and will not allow access to any Advertiser Account by an unauthorized third party.  Advertiser shall only allow access to the Advertiser Account by its employees or authorized agents who have been designated as authorized users of the Advertiser Account.  Advertiser understands and agrees that it is solely responsible and liable for its use of the Advertiser Account(s) and maintaining the security for all Advertiser activity under its Advertiser Account(s), its password, and for the information entered or modified by Advertiser through its use of the Advertiser Account(s) and the Platform.  Renuant will not be liable for any loss or damage from Advertiser’s failure to comply with its security obligations under this Agreement.  Renuant reserves the right to (i) suspend Advertiser’s access to the Advertiser Account at any time to the extent Advertiser misuses the Account, and (ii) update the features, and account and platform information posted in the Advertiser Account.

3.2.          Advertiser Ads.  Advertiser Ads are advertisements that may include all or portions of Advertiser Content and/or Renuant Content to be displayed on the Platform Sites.  Renuant reserves the right to exclude Advertiser Ads or Advertiser Content from the Platform and prohibit their use on any Platform Site, if Renuant, in its sole discretion, determines that the Advertiser Ads or Advertiser Content or third party content linked to from the Advertiser Content or Advertiser Sites contain Prohibited Content or would otherwise disparage or harm the reputation of Renuant or any Publisher.  Notwithstanding the foregoing, Renuant shall have no obligation to monitor the Advertiser Ads, Advertiser Content or the Advertiser Sites.

3.3.          License.  Subject to the terms and conditions of this Agreement, and during the Term of this Agreement only, Advertiser hereby grants to Renuant and the applicable Publishers, on behalf of itself or other parties, as applicable, a fully-paid, non-exclusive, limited right and license to host, store, reproduce, display publicly, perform, modify for the purposes set forth herein, create derivative works from, and use the Advertiser Content and Advertiser Marks for advertising on the Platform Sites as contemplated herein.

3.4.          Ownership.  As between Advertiser and Renuant, Advertiser retains all right, title and interest in and to the Advertiser Content, the Advertiser Sites, Advertiser Marks, and the Intellectual Property of Advertiser, including without limitation all copyrights and other intellectual property rights therein, and Renuant retains all right, title and interest in and to the Renuant Materials, Renuant Sites, and the Intellectual Property of Renuant, including without limitation all copyrights and other intellectual property rights therein.

 

4.        OFF-PLATFORM CAMPAIGNS.  If Advertiser is bidding on lead or call-based Engagements, then certain parts of such campaigns may operate outside of Renuant’s Platform and instead operate through a third-party platform. Since third-party platforms may not offer the full functionality of the Platform, the Parties may instead execute insertion orders (“IO(s)”) setting forth Advertiser’s bids and other campaign criteria. Unless an IO says otherwise, these campaigns will generally operate as follows:

4.1.          Leads. Lead-based Engagements operate via ping post, where Renuant will ping partial Consumer Data to Advertiser (such data to exclude the Consumer’s personally identifiable information), Advertiser will respond to the ping with its Bid for the Engagement, and Renuant will post the full Consumer Data to Advertiser upon a winning Bid. After Consumer Data is posted, in the event the IO authorizes Advertiser to reject an Engagement for being a duplicate to Advertiser, then the rejection must occur in real-time immediately after Advertiser wins the Engagement and receives the Consumer Data. Advertiser may not otherwise return or reject a lead-based Engagement.

4.2.          Calls. Call-based Engagements can take the form of inbound calls or warm transfers. For inbound calls, either a Renuant phone number or dedicated Advertiser phone number will be displayed on the Platform Sites. Consumers will generally be unqualified prior to connection with Advertiser, so each Engagement will be payable upon a certain connection time. For warm transfers, Renuant will make use of an IVR or a live representative, provided by Renuant or an Affiliate, to prequalify the Consumer per Advertiser’s campaign criteria and transfer the Consumer to Advertiser. These Engagements will be payable upon transfer to Advertiser.

 

5.        PAYMENT; FEES.

5.1.          Payment and Invoices.  Renuant will provide Advertiser with a monthly invoice for all fees due under this Agreement and Advertiser agrees to pay such amounts in United States dollars within thirty (30) days after receipt of invoice. Unless an invoice is disputed in good faith, late payments shall bear interest, until paid in full, at one and a half percent (1.5%) per month or the maximum interest rate permitted by law, whichever is lower.

5.2.          Invoice Disputes.  Advertiser must notify Renuant, in writing, within thirty (30) days after its receipt of any invoice regarding any good faith dispute it has relating to the number of and types of Engagements, the amounts charged for such Engagements, or any Engagements it suspects were generated through fraudulent activity. If Advertiser fails to notify Renuant within the thirty (30) day period, Advertiser agrees that it will be obligated to pay for all amounts due on the applicable invoice.  Advertiser shall not be entitled to reject, return or receive credit or refund for any Engagements, except in the event of failure of Renuant to provide the services hereunder or as provided for in this Section 5.2.

5.3.          Taxes.  Advertiser agrees to pay any applicable sales, use, excise or other tax (excluding any tax that is based on Renuant’s income), duty, or other charge of any kind or nature that is levied or imposed by any governmental authority or regulatory body in connection with this Agreement or the services Renuant provides to Advertiser hereunder.  Advertiser will make all payments of amounts due to Renuant free and clear of, and without reduction for, any of the aforementioned taxes, duties or charges. 

 

6.        Term; Termination. 

6.1.          Term.  The term of this Agreement will begin on the Effective Date and will continue until either Party terminates this Agreement by providing the other Party with at least fifteen (15) days advance written notice of termination (the “Term”). 

6.2.          Effect of Termination.  Upon termination of this Agreement, (i) each Party will immediately cease using any Confidential Information provided by the other Party, (ii) Advertiser will immediately cease using the Advertiser Account and the Platform, and (iii) Advertiser shall pay all amounts outstanding under this Agreement to Renuant within thirty (30) days of such termination.  Upon termination, any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening.

 

7.        USE AND OWNERSHIP OF DATA. 

7.1.          Consumer Data.  During an Engagement, a Consumer may provide Consumer Data.  Advertiser and Renuant will jointly own Consumer Data. Advertiser exclusively owns any data provided by a Consumer to Advertiser after the Engagement.  Advertiser may not sell the Consumer Data and shall only use Consumer Data for the sole purpose for which it was collected and for no other purpose. Renuant will have the right to “seed” the Consumer Data provided to Advertiser with fictitious data (which Advertiser will not be charged for) to assure compliance with this Section.

7.2.          Campaign Data.  Renuant and Advertiser will jointly own the Campaign Data available to such Party and shall have the right to use the Campaign Data for internal purposes.  If either party discloses such data, such data will be disclosed on an aggregated and anonymous basis.

7.3.          Advertiser-Provided Data.  Advertiser shall own all Advertiser-Provided Data; provided, however, that Advertiser on behalf of itself or other parties, as applicable, hereby grants Renuant a perpetual, fully-paid right and license to (i) maintain and use the Advertiser-Provided Data to support the Advertiser’s campaigns through the Platform and provide and improve the Platform in general and (ii) disclose the Advertiser-Provided Data on an anonymous and aggregated basis in case studies, graphs, and other Platform promotional and informational materials. 

7.4.          Restrictions

7.4.1.    Neither Party will knowingly solicit or collect Consumer Data or any other personal or personally identifiable information from a child under the age of 13, nor shall Advertiser use the Platform to target advertisements at children under the age of 13.

7.4.2.    Each of the Parties acknowledges and agrees that the Platform is for advertising campaigns targeted to Consumers in the United States.  Neither Party shall knowingly collect information from a Consumer, (i) who is located outside the United States, or (ii) the collection or processing of information from whom, is otherwise subject to the data privacy laws of countries other than the United States.

 

8.        Confidentiality; Protection of Confidential Information and Press Releases.

8.1.          Confidential Information means (i) technical innovations, know-how, business practices, consumer acquisition practices, ideas, inventions, processes, financial records, prices, trade secrets, applications, source code, reporting, data, and Intellectual Property;  (ii) any and all information that is disclosed by either Party to the other Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure, (iii) by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary and/or confidential, or (iv) any information which is or reasonably should be considered to be proprietary and/or confidential.

8.2.          Exclusions.  Confidential Information does not include information that:  (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving Party; (ii) is rightfully known by the receiving Party at the time of disclosure without an obligation of confidentiality, as evidenced by the receiving Party’s tangible (including written or electronic) records; (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information, as evidenced by the receiving Party’s tangible (including written or electronic) records; or (iv) the receiving Party rightfully obtains from a third party, who does not have a known obligation of confidentiality, without restriction on its use or disclosure.

8.3.          Use and Disclosure Restrictions.  Neither Party may use the other Party’s Confidential Information, except as necessary for the performance of this Agreement, nor may either Party disclose Confidential Information of the other Party to any third party or individual, except to those of its employees or subcontractors that need to know such Confidential Information for the purpose of performing this Agreement; provided, that each such employee or subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein.  Each Party must use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which will be at least equal to the efforts that Party ordinarily uses with respect to its own proprietary information of similar nature and importance.  The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party in order that the disclosing Party may act to prevent or restrict the ordered disclosure; (ii) on a confidential basis to its legal or financial advisors; or (iii) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party.  Upon the written request of the disclosing Party, all copies of Confidential Information shall be promptly returned or destroyed by the receiving Party.  Notwithstanding the foregoing, a receiving Party may retain in the offices of its legal advisor a single archival copy of any written or photographic Confidential Information provided by the other Party under this Agreement, which copy shall only be used by the receiving Party and its legal advisors to review its obligations under this Agreement.

8.4.          Press Releases.  Neither Party may publicize this Agreement nor the relationship between the Parties established herein to any third party, including without limitation issuing a press release, unless it has obtained the prior written approval of the other Party hereto.

 

9.        Representations and Warranties; Disclaimers; Limitation of Liability.

9.1.          Mutual Representations and Warranties.  Each of the Parties represents and warrants that (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreements to which it is a party; (iii) its performance hereunder will comply with all applicable laws, rules, and regulations relating to online privacy or otherwise; (iv) this Agreement constitutes a legal, valid and binding obligation of it when executed and delivered; and (v) it has and will have the necessary rights, title and interest to grant the licenses granted herein.

9.2.          Renuant Representations and Warranties.  Renuant represents and warrants to Advertiser that (i) the Renuant Materials and Renuant Sites do not infringe, violate, or misappropriate any intellectual property rights of any third party or contain Prohibited Content; and (ii) for lead-based Engagements where prior express written consent is required pursuant to the Telephone Consumer Protection Act of 1991 (“TCPA”) for Advertiser to make autodialed and/or prerecorded telemarketing calls (or texts) to Consumers is required, such consent language shall comply in all material respects with applicable provisions of the TCPA; provided, that Advertiser (a) provides Renuant with the accurate name to be inserted into the consent language and accurate information with respect to its call and other communication practices and (b) contacts the Consumers in accordance with the consents obtained

9.3.          Advertiser Representations and Warranties.  Advertiser represents and warrants to Renuant that (i) the Advertiser Content and Advertiser Sites do not, and will not, infringe, violate, or misappropriate any intellectual property rights or contain Prohibited Content; (ii) as applicable, it is authorized to act on behalf of its client advertisers when using the Platform or otherwise engaging in activities permitted under this Agreement;  (iii) Advertiser has supplied the accurate name to be inserted into any TCPA prior express written consent language, if applicable; and (iv) Advertiser, and its clients, shall comply with applicable law, including privacy law, in its use and storage of user data transferred to Advertiser by Renuant or its agents, including Consumer Data. With respect to any Engagements that include the creation, collection, retention and use of protected health information as defined at 45 C.F.R. §160.103 (“PHI”), Advertiser acknowledges and agrees that Renuant does not store PHI and Advertiser, not Renuant, shall provide a Consumer or any other entity, as required by applicable laws, with access to such consumer’s PHI and personally identifiable data upon request or as otherwise required by applicable laws.

9.4.          Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE WITH RESPECT TO ITS PRODUCTS AND/OR SERVICES.  TO THE FULLEST EXTENT PERMITTED BY LAW, THE PLATFORM AND THE PLATFORM SITES ARE PROVIDED “AS IS” AND AT ADVERTISER’S OPTION AND RISK.  RENUANT MAKES NO WARRANTY OR GUARANTEE OF ANY KIND THAT (I) THE PLATFORM OR PLATFORM SITES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, AND SECURE, OR OPERATE WITHOUT ERROR, OR (II) THE SERVICES PROVIDED HEREUNDER WILL PROVIDE SPECIFIC VOLUMES OF TRAFFIC, RESULTS, ACCURATE CONSUMER INFORMATION, CONVERSIONS OR SALES OBJECTIVES OR ANY LEVEL OF PROFIT OR BUSINESS.  ADVERTISER UNDERSTANDS AND ACCEPTS THAT CONSUMERS AND CONSUMER DATA HAVE NOT BEEN SCREENED OR VALIDATED BY RENUANT AND ARE NOT GUARANTEED TO BE ACCURATE OR ERROR-FREE AND RENUANT IS NOT LIABLE FOR SUCH INACCURACIES. 

9.5.          LIMITATION OF LIABILITY.  IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING LOST DATA, BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE APPLICABLE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.  OTHER THAN AS SET FORTH IN SECTION 10 BELOW, NEITHER PARTY SHALL HAVE LIABILITY FOR THE ACTS OR OMISSIONS OF THIRD PARTIES.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE LESSER OF THE FEES PAYABLE BY ADVERTISER TO RENUANT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE MILLION DOLLARS ($1,000,000).  THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT, AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

10.     INDEMNIFICATION.  Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold the other Party and its directors, officers, shareholders, employees, affiliates, and agents (the “Indemnified Party”) harmless from and against any liabilities, damages, losses, or expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party that is based upon, arises out of, or relates to the  actual breach of Indemnifying Party’s representations and warranties set forth in Section 11; provided, however, that Indemnified Party: (i) promptly notifies Indemnifying Party in writing of the claim, except that any failure to provide this notice promptly only relieves Indemnifying Party of its responsibility pursuant to this Section to the extent its defense is materially prejudiced by the delay; (ii) grants Indemnifying Party sole control of the defense and/or settlement of the claim, provided Indemnifying Party uses legal counsel reasonably acceptable to Indemnified Party; and (iii) provides Indemnifying Party, at Indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim.  Indemnifying Party shall not settle any claim in a manner that adversely affects the rights of the Indemnified Party without Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.  Indemnified Party may participate in and observe the proceedings at its own cost and expense with legal counsel of its own choosing.

 

11.     MISCELLANEOUS.

11.1.       Relationship of the Parties.  The relationship of Renuant and Advertiser established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to constitute a partnership, joint venture, agency, or employment relationship between the Parties.  Neither Party shall have any right to obligate or bind the other Party hereto in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.

11.2.       Governing Law; Jurisdiction.  This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The Parties agree that the federal and state courts located in Alameda County, California will have exclusive jurisdiction and venue under this Agreement, and the Parties hereby agree to submit to such jurisdiction exclusively. 

11.3.       Assignment.  Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may freely assign any of its rights or obligations under this Agreement without consent: (i) to its affiliates (provided that any such assignment will not relieve Advertiser of its obligations hereunder) or (ii) in connection with any merger, consolidation, reorganization, or sale of all or substantially all of its assets related to this Agreement, by operation of law or otherwise, or similar transaction.  This Agreement inures to the benefit of and is binding upon the Parties’ permitted assignees, transferees and successors.

11.4.       Amendments.  Except as otherwise set forth herein, all amendments to this Agreement must be in writing and executed by both Parties hereto.   

11.5.       Waiver.  A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived.  The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.

11.6.       Severability.  If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement. 

11.7.       Notices.  All notices under the terms of this Agreement must be given in writing and sent by United States registered or certified mail, nationally recognized express courier, facsimile transmission, email, or must be delivered by hand to the following addresses:

 

RENUANT, LLC

ADVERTISER

c/o Contracts Department

4200 Park Blvd. #12

Oakland, CA 94602

Email Address: contactus@Renuant.com

                       

 

With a copy of notices pertaining to breach to:

Same As Above

Attention:  Legal Department

 

All notices will be presumed to have been received when hand delivered, one (1) day after being sent via nationally recognized express courier, within five (5) business days after being placed in the United States mail, postage prepaid, certified or registered mail, or upon confirmation of delivery after being received via facsimile transmission or email. 

11.8.       Force Majeure.  Except for Advertiser’s payment obligations under this Agreement, neither Party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including labor disputes, strikes, lockouts, carrier gateway provider service failures, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing. 

11.9.       Entire Agreement.  This Agreement and any exhibits, addendums and schedules attached hereto set forth the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements or understandings (whether oral or written) between Advertiser and Renuant regarding the subject matter.  All exhibits and schedules attached to this Agreement are incorporated herein. The Parties mutually agree that this Agreement shall supersede any End User License Agreement (“EULA”) or general terms and conditions which may be found on any website owned, operated or hosted by either Party, including any online agreement Advertiser may be required to accept to access the Platform, any IO, or in any boilerplate Advertiser agreement such as may be appended to an Advertiser purchase order or insertion order. In no event shall the provisions of any insertion order or any associated documentation constitute a binding agreement between the Parties or serve to modify the provisions of this Agreement, regardless of any failure of Renuant to object to any insertion order or associated documentation.

11.10.    Headings and Wording.  Unless otherwise expressly stated in this Agreement, the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection, or other subdivision.  The words “include” and “including” are not and should not be construed or interpreted as terms of limitation.  The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month, and calendar year.  The word “notice” and “notification” and their derivatives mean notification in writing as more fully described in the “Notices” section above, unless otherwise specified in this Agreement.  Section or paragraph headings used in this Agreement are for reference purposes only, and should not be used in the interpretation hereof.  No provision of this Agreement will be construed against either Party as the drafter thereof.

11.11.    Counterparts. This Agreement may be signed in one or more counterparts, which may be in an electronically delivered format.  Each of them is an original, and all of them constitute one agreement.