INTRODUCTION. This Publisher Service Agreement (“Agreement”) shall govern the relationship between The Pepperjam Network, a Pennsylvania LLC, located at 7 South Main Street, Third Floor, Wilkes-Barre PA 18701 (“PEPPERJAM”) You (“You” or “Publisher”) using the advertising service (the “Service”) offered through the PEPPERJAM NETWORK located at www.pepperjamnetwork.com (the “Site”). You and PEPPERJAM NETWORK may also be individually referred to herein as “Party” and collectively as “Parties.” You agree to use the Site, the Service and any additional products and/or services offered by PEPPERJAM NETWORK only in accordance with this Agreement. PEPPERJAM NETWORK reserves the right to make changes to the Site, Service and the Agreement at any time and without prior notification. The latest Agreement will be posted on the Site. Your continued use of the Site and/or Service after any such modification thereof shall constitute Your consent to sue modification. Therefore, you should regularly check the Site for updates and/or changes. For the purposed of this Agreement “Publisher” includes the individual, company or entity and, without limitation, any parent entities, owners, subsidiaries, publishers, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of the same, registering with PEPPERJAM NETWORK to use the Service. If you do not agree to the terms of this Agreement in its entirety, You are not authorized to: (a) register as a Publisher; (b) use the Service; and/or (c) use the Site, in any manner or form whatsoever. PEPPERJAM NETWORK may, at its sole discretion, refuse to register You as a Publisher and/or terminate Your participation
in and Program (as defined herein) at any time for any reason.
PEPPERJAM NETWORK. As a service provider and online network, PEPPERJAM facilitates “Affiliate Marketing Programs” via their technology and Network on the Internet. An “Affiliate Marketing Program” (“Program”) is where a Publisher or its agent operating one or more “Web site(s)” (domain or portion of a domain within the Internet) and/or subscription e-mail list(s) (“Publisher”) may earn financial compensation (“Commissions”)
for “Transactions” (“Sale(s)” and/or “Leads”) made from such Publisher”s Web site, e-mails or other form through a click made by a “Customer” (generally any person or entity that is not the Publisher’s agent) on an online connection (“Link”) to a Web site or Web site content operated by another person or entity (“Merchant” or “Advertiser”). The Merchant compensates the Publisher, in accordance with this Agreement and the Program specifications.
In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Participation in Programs.
a. Accessing Merchant Programs. Publisher may apply to Merchant Programs for the opportunity to earn Commissions by promoting Merchants in accordance with the Merchant’s Program terms and complying with this Agreement. Once approved by the Merchant for acceptance into its Affiliate Program, Publisher may utilize links to Merchant’s Web site or offers in accordance with the Merchant’s Program terms and this Agreement.
b. Program Terms. The details of a Merchant’s Program shall be available through The Pepperjam Network. Transactions qualifying for a Commission are defined by the Merchant, the Agreement and The Pepperjam Network.
2. Publisher Requirements with PEPPERJAM.
a. Registration. To use (or continue to use) any PEPPERJAM NETWORK as a Network Publisher, You must provide PEPPERJAM NETWORK with truthful, accurate and complete registration information. If any such information changes, You must immediately contract PEPPERJAM NETWORK to update Your registration information.
b. Valid Information. Publisher agrees to provide PEPPERJAM and Merchant with valid information about Publisher and Publisher’s promotional methods, and to maintain up-to-date “Account” information (such as contact information, Web sites used, ownership, etc.).
PEPPERJAM NETWORK has the right to confirm or otherwise verify or check, in its sole determination, the truth and accuracy of any registration information at any time.
Please note that the verification of Your registration information, specifically, your name, address and Tax identification number, against a third party database may be considered under certain laws to constitute a “credit check.” Notwithstanding that, your participation in the PEPPERJAM NETWORK as a Network Publisher does not depend on Your credit worthiness or financial stability. PEPPERJAM NETWORK is not making as part of the registration process, and will not otherwise make, any type of inquiry to any third party regarding any individual”s credit history and personal financial information without first obtaining such individual’s express prior authorization to do so.
Please be advised that if any information is determined in good faith by PEPPERJAM NETWORK to be misleading, inaccurate or untruthful, PEPPERJAM NETWORK may restrict, deny or terminate Your account, Your access and use of, and/or any benefits derived from Your participation on PEPPERJAM NETWORK; PEPPERJAM NETWORK may also withhold payment of any commissions and/or other fees that may be or become due or payable to You, and may assess charges against such amounts for PEPPERJAM NETWORK”s activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
c. Link Standards. Publisher represents and warrants that all promotional means utilized by Publisher will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that Publisher will not mislead others. The Pepperjam Transparency Department reviews Publisher information, conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by Publisher through Publisher’s promotional methods. Any validated breach of these link standards is grounds for immediate termination of this Agreement or deactivation of Publisher’s Account.
d. Promotional Method Restrictions. Publisher agrees that they will not engage in spamming, unlawful mass emailing or any unapproved emailing or in any way fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any additional legislation), and/or any other rules, laws or regulations that govern email marketing and advertising Publisher agrees that their promotional activities will not infringe on the Merchant’s protected business rights, including but not limited to copyright and trademark rights. These restricted promotional methods include the agreement by Publisher to refrain from trademark bidding and direct linking on search engines including but not limited to Google, Yahoo, MSN, when the Merchant program prohibits such activity. By “direct linking” this agreement refers to sending traffic directly from the search engine to the Merchant website without use of an intermediary landing page. This section is in no way exhaustive of restricted Publisher promotional activities. PEPPERJAM NETWORK reserves the right at any time to further restrict what activities are considered valid and commissionable under this agreement. Only Publisher Websites, Publisher E-mail distribution lists and other marketing channels that have been reviewed and approvedby PEPPERJAM NETWORK may be utilized in connection with the Site and Service. PEPPERJAM NETWORK reserves the right to withhold, refuse or withdraw approval of any websites, email distribution lists and/or marketing channels for any reason, whatsoever, in PEPPERJAM NETWORK”s sole discretion. Publisher shall not alter, modify or otherwise change the Creatives, or any Creatives-related feature, that it obtains access to in connection with any Program in any manner whatsoever, without PEPPERJAM NETWORK”s prior express written consent. PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF CREATIVES THAT IT HAS PLACED WITHIN ITS MEDIA ON A DAILY BASIS. IT IS THE PUBLISHER”S SOLE RESPONSIBILITY TO CHANGE CREATIVES WITHIN ITS MEDIA WHEN A CREATIVE IS NO LONGER AVAILABLE IN PEPPERJAM NETWORK. PEPPERJAM NETWORK ASSUMES NO RESPONSIBILITY TO NOTIFY PUBLISHER WHEN A SPECIFIC CREATIVE IS NO LONGER AVAILABLE IN PEPPERJAM NETWORK. In addition, Site integration tags and tracking pixels (“Tags”)included in the Creatives or otherwise incorporated may not be altered under any circumstances. PEPPERJAM NETWORK employs a testing system to ensure that You have not removed or altered the Tags. Altering, removing or disabling Tags may jeopardize Your ability to be paid for Actions and would be grounds for immediate termination of Your Publisher account, with or without notice.
e. Personally Identifiable Information of Visitors. Publisher represents and warrants that Publisher will not enable the Tracking Code to collect personally identifiable information of Visitors that would allow You to personally identify Visitors.
f. Privacy Policies. Publisher must post a privacy policy on Publisher’s site and otherwise make it available to any and all users.
3. PEPPERJAM’s Services.
a. Access to Site and Service. PEPPERJAM NETWORK is responsible for displaying and administrating all active Programs and tracking associated with Commissions and Actions. Program data compiled by PEPPERJAM NETWORK including, but not limited to, numbers and calculations regarding Actions and associated Commissions (“Program Data”), will be calculated by PEPPERJAM NETWORK through the use of industry standard tracking technology and shall be final and binding on You. Any questions regarding the Program Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Program Data will be deemed to be accurate and accepted by You. Publisher understands and agrees that on occasion the Service and/or PEPPERJAM NETWORK may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of PEPPERJAM NETWORK or which are not reasonably foreseeable by PEPPERJAM NETWORK including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. PEPPERJAM NETWORK will attempt to provide the Service on a continuous basis. However, Publisher acknowledges and agrees that PEPPERJAM NETWORK has no control over the availability of the Service and PEPPERJAM NETWORK on a continuous or uninterrupted basis. Terms of the Agreement are subject to PEPPERJAM NETWORK hardware, software, and bandwidth traffic limitations. PEPPERJAM NETWORK”s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the Agreement.
b. Tracking Commissions. PEPPERJAM shall recognize actual Commissionsthat should be credited to Publisher’s Account. PEPPERJAM may, at times, apply an estimated amount of Commissions, if there is a verified error in Merchant’s tracking code.
c. Access to Tracking and Reporting Tools. PEPPERJAM shall provide Publisher with access to tracking and reporting tools, and to other various support services that will be updated from time to time on the
network website.d. Support. Support for Publisher’s program is available at all times by contacting The Pepperjam Network and reaching the appropriate parties or support services.
e. Payment of Commissions. Subject to other provisions in this Agreement, PEPPERJAM shall credit Publisher’s Account with a Commission for each qualifying Transaction in accordance with the Merchant’s Payout rate and Program terms for the relevant Transaction. On or around the 1st and 15th day of each calendar month, PEPPERJAM will issue to Publisher any positive balance in Publisher’s Account for Transactions reported for the previous relevant period. PEPPERJAM shall have no obligation to make payment of any Commissions for which PEPPERJAM has not received payment from the relevant Merchant of all monies due to PEPPERJAM (including for all Commissions owed by such Merchant to all of such Merchant’s Publishers) until such payment has been received. Instead, Publisher shall have the right to pursue any and all legal remedies directly against any Merchant that has not made funds available to pay sums due and owing to Publisher for Commissions earned in connection with a particular program. All Publisher accounts will be paid in US Dollars ($US). Notwithstanding anything contained herein to the contrary, no Commissions will be issued for any amounts otherwise due Publisher that total less than twenty-five dollars ($25.00) (“Payment Threshold”). Upon termination of the Agreement, all legitimate moneys due to Publisher that actually collected from the applicable Merchant, even amounts below the Payment Threshold, will be paid during the next billing cycle. Every Publisher must have a unique, valid taxpayer identification number (TIN), valid Social Security Number, or other applicable unique government identification. All payments due hereunder shall be in U.S. dollars and are exclusive of any applicable taxes. Publisher shall be responsible for all applicable taxes. A Merchant may request that PEPPERJAM NETWORK, or PEPPERJAM NETWORK may on its own initiative, debit from the Commissions otherwise due and owing Publisher an amount equal to a Commission previously credited to Publisher”s account where: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (c) there are Actions that do not comply fully with the terms of the Agreement, including where the applicable non-complying Action is not the result of Publisher’s action, omission and/or failure to comply with the terms and conditions of the Agreement; (d) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Action; or (e) there is any failure on the part of the Publisher to comply with the Agreement and or applicable Program Terms (collectively referred to as a “Reversal”). Reversals requested by a Merchant in accordance with this Section may be applied up to sixty (60) days after the end of the month in which the applicable Commission was earned (“Reversal Period”). Merchant may request that the payment of a Commission be postponed for one (1) payment cycle where: (i) Merchant is verifying a lead (for Programs in which lead generation is a component of the Action); (ii) Advertiser has a product return policy that allows the underlying purchaser to return the product during the Reversal Period; or (iii) the applicable Program Terms provide for such a postponement. The number or amount of Actions, credits for payments and debits for Reversals, as calculated by PEPPERJAM NETWORK, shall be final and binding on Publisher.
f. Fraud. PEPPERJAM NETWORK actively monitors traffic, Actions, Commissions and other Program-related activities for potential fraud. If PEPPERJAM NETWORK suspects that Your account has been used in a fraudulent manner, Your account will be deactivated effective immediately and with no notice to You pending further investigation. If You add Actions, or inflate Actions, through the use of fraudulent means of traffic generation, as determined solely by PEPPERJAM NETWORK, You will forfeit all of the Commissions related to that Program, and Your Publisher account will be terminated effective immediately. PEPPERJAM NETWORK reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. It is the OBLIGATION of Publisher to prove to PEPPERJAM NETWORK that it has NOT engaged in fraud. PEPPERJAM NETWORK will hold Your Commission-related payments in ‘Pending or Delayed Status’ until You have satisfactorily provided evidence that demonstrates to PEPPERJAM NETWORK that You have not engaged in fraud. If you are unable to provide PEPPERJAM NETWORK with satisfactory evidence that You have not engaged in fraud within seven (7) days of Your Commissions being placed in “Pending or Delayed Status,” then PEPPERJAM NETWORK reserves the right to terminate Your Publisher account and cancel payment on the applicable Commissions, at its sole discretion and without any further obligations to You.
4. Proprietary Rights.
a. Linking to Merchants. For each Merchant’s Program that Publisher has applied to and been accepted to, the Merchant is granting to Publisher the right to Link to the Merchant’s Web site or Web Offers in accordance with the Merchant’s Program terms and the terms of this Pepperjam Network Agreement.
b. PEPPERJAM’s Use of Publisher’s Information. Publisher authorizes PEPPERJAM to utilize Publisher’s otherwise protected information subject to the provisions of Section 5 below related to confidentiality and ownership of Publisher identification and marketing data.
5. Confidentiality and Ownership of Publisher Data.
You or PEPPERJAM NETWORK may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential (“Confidential Information”). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, You must destroy or return to PEPPERJAM NETWORK any Confidential Information provided by PEPPERJAM NETWORK to You under this Agreement. PEPPERJAM NETWORK agrees that through the NETWORK, it collects sensitive data related to the identification and marketing practices of its Publishers.
a) Pepperjam recognizes and acknowledges that Publisher possesses and utilizes sensitive, confidential marketing information that constitutes a valuable, special, and unique asset to their business. As used herein, the term “confidential marketing information” “Confidential Information” includes all information surrounding keywords, referring URL”s and any and all specific marketing data that is not openly available to the public domain. Pepperjam agrees to protect all of Publisher”s confidential information with the utmost respect to its sensitivity and importance to the Publisher. Under this agreement, Pepperjam will take all possible and available steps to protect the defined confidential marketing information with regard to, but not limited to, Pepperjam Network advertisers, other Publishers, and Pepperjam employees. Pepperjam recognizes that any breach of this duty to protect and preserve the Publisher information may result in a legal liability against Pepperjam by Publisher.
6. Notices.
Except as provided elsewhere herein, Publisher must send all notices relating to this Agreement in writing via overnight mail or fax: (a) to PEPPERJAM at The Pepperjam Network Attn: Office of the General Counsel, 7 South Main Street, Third Floor, Wilkes-Barre PA 18701, and/or via facsimile to (877) 554-3947. All notices from PEPPERJAM NETWORK shall be sent to the address submitted by You when You sign up for the Service.
7. Term.
The Agreement shall commence upon PEPPERJAM NETWORK”s acceptance of Your Publisher application and remain in effect until terminated as set forth herein.
8. Termination.
Either party may terminate this agreement at any time forany reason whatsoever. In addition, PEPPERJAM NETWORK reserves the right, in its sole and absolute discretion, to terminate a Program and/or remove any Creatives at any time for any reason, upon notice to You. PEPPERJAM NETWORK also reserves the right to terminate Your access to the Site at any time with or without notice to You. Termination notice may be provided via e-mail and will be effective immediately. Upon termination, Publisher agrees to immediately remove from its Publisher Website(s) any and all Creatives, PEPPERJAM NETWORK Code or other intellectual property made available to Publisher in connection with its performance under the Agreement. The representations, warranties and obligations contained within the Agreement shall remain in full force and effect after termination of the Agreement.
9. Representations and Warranties.
The Parties hereby acknowledge and agree that Publisher is solely responsible for the method in which the Creatives are disseminated. You represent and warrant that You will not engage in any activities that violate any Advertiser”s Program”s Terms and Conditions. Moreover, You represent and warrant that: (a) Your Publisher Website and/or Publisher E-mails are represented by a legitimate second-level domain name (e.g. yoursite.com is acceptable; however, a shared server, e.g., sharedsite.com/yoursite, is not acceptable); (c) Your Publisher Website is not offered as a part of a community-based website personal entry or personal page; (d) Your Publisher Website and Publisher E-mails do not incentivize users to click on Creatives (“Incentives”). Incentives include, but are not limited to, awarding users cash, points, prizes, and/or contest or sweepstake entries; (e) Your Publisher Website is not hosted by a free service and is fully functional at all times and at all levels (no “under construction” Publisher Websites or any sections thereof are permissible); (f) You will place or use the Creatives only with the intention of delivering valid Actions as determined by, and for the benefit of, the applicable Advertiser; (g) You will not, nor knowingly permit any person to, activate Creatives or inflate the amount of Actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an Action; (h) You will not violate guidelines of any search engines being utilized; (i) You will not allow the Creatives to be placed on any non-Publisher Website without the prior express written consent of PEPPERJAM NETWORK; (j) You will not use any Creatives or any other Program terms and/or content in connection with aggregating, soliciting or recruiting other Publishers, Advertisers, other websites or other persons to form or join an affiliate marketing, advertising or similar network for the purpose of engaging in business of the type conducted by PEPPERJAM NETWORK; and (k) You will not redirect traffic to a website other than the website specifically listed by the applicable Advertiser. You further represent and warrant that the content of Your Publisher Website and Publisher E-mails does not promote, advocate, facilitate or otherwise include any of the following: (i) hate speech or material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation; (ii) Investment, money-making opportunities or advice not permitted under law; (iii) violence or profanity; (iv) pornographic, obscene, sexually explicit or related content; (v) material that defames, abuses, is libelous, is tortuous or threatens physical harm to others; (vi) material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (vii) material that impersonates any person or entity; (viii) any indication that any statements You make are endorsed by PEPPERJAM NETWORK and/or an Advertiser, without PEPPERJAM NETWORK”s and/or Advertiser”s specific prior written consent; (ix) promotion of illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money, etc.); (x); content which is inappropriate or harmful to children; (xi) promotion of terrorism or terrorist-related activities, sedition or similar activities; (xii) software pirating (e.g., warez, hotline); (xiii) hacking or phreaking; (xiv) any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (xvi) any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users; (xvii) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic; (xviii) any content that infringes upon the intellectual property rights of any third party or any other right including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy; (xix) gambling, contests, lotteries, raffles, or sweepstakes; (xx) any material that violates CAN-SPAM; or (xxi) any illegal activity whatsoever (including any violations of applicable U.S. state or federal law or regulation, Canadian provincial or federal law or the laws of any other jurisdiction in which You operate).
10. Proprietary Rights.
Subject to the Agreement and any underlying Program Terms, PEPPERJAM NETWORK grants to Publisher a revocable, non-transferable, royalty free, international license to display on, and distribute through, the Publisher Website, Publisher E-mails and/or other approved marketing channels, the Creatives, and any and all associated trademarks, service marks, tradenames and/or copyrighted material (“Intellectual Property Content”) that PEPPERJAM NETWORK provides to Publisher through the PEPPERJAM NETWORK for the limited purposes of promoting Programs to end users. Publisher may not remove or alter any copyright or trademark notices. The Intellectual Property Content and other matters related to the PEPPERJAM NETWORK, Programs, Creatives and Site are protected under applicable copyright, trademark and other proprietary rights. The use, copying, redistribution and/or publication by Publisher of any part of the PEPPERJAM NETWORK, Programs, Creatives and/or Site, other than as expressly permitted hereunder, are strictly prohibited. Publisher does not acquire any ownership rights to the PEPPERJAM NETWORK, Programs, Creatives and/or Site. The availability of PEPPERJAM NETWORK, Programs, Creatives and Site does not constitute a waiver of any rights related thereto. No part of the Site may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Site, Site content or any portion thereof. PEPPERJAM NETWORK reserves any rights not explicitly granted in the Agreement.
11. Limitation of Liabilities.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES; OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. PEPPERJAM NETWORK”S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE THE MINIMUM ALLOWED UNDER APPLICABLE LAW. REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST PEPPERJAM NETWORK MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. PUBLISHER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE SITE, CREATIVES, PROGRAMS, ADVERTISERS” UNDERLYING PRODUCTS AND SERVICES, CONTENT AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE SITE, CREATIVES, PROGRAMS AND/OR ADVERTISERS” UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. PEPPERJAM NETWORK HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER”S USE OF, OR INABILITY TO USE, THE SITE, CREATIVES, PROGRAMS AND/OR ADVERTISERS” UNDERLYING PRODUCTS OR SERVICES AND PEPPERJAM NETWORK DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER”S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE PROGRAMS WILL BE AVAILABLE TO PUBLISHER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN PEPPERJAM NETWORK AND PUBLISHER. THE SITE, CREATIVES, PROGRAMS AND/OR ADVERTISERS” UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. PEPPERJAM NETWORK MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE SITE, CREATIVES AND/OR PROGRAMS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM PEPPERJAM NETWORK AND/OR ANY ADVERTISER BY AND THROUGH THE SITE, CREATIVES AND/OR PROGRAMS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT. MOREOVER, YOU AGREE TO INDEMNIFY PEPPERJAN NETWORK FOR ANY AND ALL LEGAL ACTIONS BROUGHT BY ADVERTISER AGAINST PUBLISHER.
12. Indemnification.
Publisher shall indemnify and hold PEPPERJAM NETWORK harmless against all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) attributable to or related to Merchant’s breach of this Agreement and for claims of product liability (“Claims”). Should any Claim give rise to Publisher’s duty of indemnification under the provisions of this Agreement, then PEPPERJAM shall promptly notify Publisher, and Publisher may participate in (at Publisher’s own expense), but not control, the defense of such Claim. Participation in the defense shall not waive or reduce Publisher’s obligations to indemnify or hold PEPPERJAM harmless.
13. Severability/Waiver.
If any provision of this Agreement is held to be illegal, invalid, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
14. Modification.
The Agreement represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the Agreement may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with the PEPPERJAM NETWORK or any Program Terms are in conflict or inconsistent with the Agreement, the Agreement shall take precedence.
15. Jurisdiction and Venue.
The Agreement shall be construed and governedby the laws of the State of Pennsylvania, without giving effect to principles of conflicts of law. Any and all disputes or controversies whether of law or fact of any nature whatsoever arising from or respecting the Agreement shall be decided by arbitration by the American Arbitration Association (“Arbitrator”), in accordance with the rules and regulations of that Association. Arbitration shall take place in Wilkes Barre, PA.
16. Force Majeure.
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party.
17. Relationship.
Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other”s behalf.
18. Entire Agreement, Assignment and Amendment.
This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage, or custom will be deemed to amend or modify this Agreement. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
Contact Information:
The Pepperjam Network
7 South Main Street, Third Floor
Wilkes-Barre, PA 18701
p (570) 408-9861
f (877) 554-3947
