EMX Publisher’s Agreement
This EMX Publisher’s Agreement (“Agreement”) is entered into by EMX Digital, LLC (“EMX”) and the entity (“Publisher”) that accepts this Agreement by signing an insertion order (“IO”). This Agreement governs advertising delivered through Publisher’s digital properties (e.g. websites, platforms and mobile applications) (the “Publisher’s Site(s)”).
1. EMX buys advertising media on behalf of its clients;
2. Publisher sells certain advertising products that it is willing to make available in support of advertising campaigns; and
3. Publisher desires to sell and EMX desires to purchase certain of Publisher’s products in accordance with the terms set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows:
1. “Advertising Material” means the advertising content, including, but not limited to, text, graphics, logos, designs, trademarks and copyrights, for any type of advertising delivered under an IO, including, but not limited to, buttons, banners, text-links, video, and other ad formats.
2. “Advertiser(s)” means one or more companies which purchase advertising inventory within the EMX Marketplace.
3. “EMX HTML Insertion Code” means the code in which Publishers are permitted to use Advertising Material delivered to the Publisher’s Site(s).
4. “EMX Marketplace” means the advertising marketplace owned and operated by EMX.
5. “Data Protection Laws” means any Law pertaining to data protection, data privacy, data retention and/or data security including, without limitation: (1) in the United Kingdom: the Data Protection Act 1998, and any laws or regulations implementing Directive 95/46/EC (“Data Protection Directive”); as may be superseded by the General Data Protection Regulation (EU) 2016/679 (“GDPR”), and/or any corresponding or equivalent national Laws; (2) in member states of the European Union: the Data Protection Directive or the GDPR, once applicable and all relevant member state Laws giving effect to or corresponding with any of them; (3) any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority; and (4) ePrivacy Laws. “Data Controller”, “Data Processor”, “Data Subject”, “Personal Data” and “processing” shall have the meanings given to those terms under Data Protection Laws.
6. “Impressions” means the number of times Advertising Material is served to a person visiting the Publisher’s Site(s).
7. “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
8. “Law” means any law, rule, or regulation.
9. “Order” means an insertion order that is submitted by EMX and is accepted by Publisher, or an online order via the Internet, which is a proposal that is submitted by Publisher in response to a request for proposal and is accepted by EMX.
10. “Personal Data Breach” means any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Personal Data.
11. “ePrivacy Laws” means (1) in the United Kingdom: the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426, and any laws or regulations implementing Directive 2002/58/EC (ePrivacy Directive) and/or any corresponding or equivalent national Laws; and/or (2) in member states of the European Union: the ePrivacy Directive, or the Regulation concerning the respect for private life and the protection of personal data in electronic communications (Regulation on Privacy and Electronic Communications) 2017/0003 (COD), once applicable, and all relevant member state Laws giving effect to or corresponding with any of them; and (3) any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant Supervisory Authority.
12. “Publisher Provider” means any partner, supplier and/or contractor (e.g. a data provider) on whose behalf the Publisher accesses the EMX Marketplace.
13. “Publisher Earnings” and “EMX Earnings”. “Publisher Earnings” means the total revenue EMX generates by running advertising campaigns on Publisher’s Site(s) using the Advertising Materials less “EMX Earnings” and subject to the Total Spend in the event that Total Spend is established for an Order. “EMX Earnings” are calculated at the campaign level, or otherwise, at the sole and absolute discretion of EMX. EMX makes relative earnings calculations based upon a number of factors including the type of campaign metric (e.g., CPM, CPC, CPA), the performance of the campaign, the performance of buyers, technology costs, and other factors, including the performance of Publisher’s Site(s) and EMX’s Marketplace as a whole.
14. “Sites” means the digital properties (e.g. websites or applications) on which the EMX Marketplace is utilized.
15. “Supervisory Authority” means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws.
16. “Total Spend” means, if set out in an Order, the maximum amount of money EMX will pay under the Order.
17. “User Data” means Personal Data or any other data relating to users of any Sites to which (and/or the means of collecting or accessing which) Data Protection Laws apply from time to time.
1. Order, Delivery, and Adjustments.
1.1. Relationship. From time to time, the parties may negotiate the terms of Orders under which Publisher will deliver Advertising Material to its Site(s) for the benefit of Advertisers.
1.2. Orders. Each Order shall specify the relevant fees and, if specified by EMX, the Total Spend. Publisher’s delivery of Advertising Material as specified in an Order shall be deemed Publisher’s acceptance of the Order’s specifications, terms and conditions, including any payment rates.
1.3. Adjustments to Orders. The parties may make adjustment to Orders via a written change order which the parties have mutually agreed upon. The parties may agree to a change order by email.
2. Invoicing and Payment.
2.1. Payment to the Publisher. Within 90 days after the last day of each calendar month, EMX will pay Publisher the Publisher Earnings for Advertising Material actually delivered by EMX to each of Publisher’s Site(s) approved by EMX during the applicable calendar month and for which EMX has been paid by the Advertiser. EMX’s payment shall be subject to the applicable Order’s specifications, terms and conditions. Publisher acknowledges that EMX bills its Advertisers, and pays its Publishers, based on actual delivery. Additionally, there is a minimum threshold on Publisher payments in the amount of $100 dollars and any amount below this threshold will be paid when the cumulative amount owing to the Publisher reaches this minimum.
2.2. Liability for Publisher’s Revenue. Publisher understands and agrees that the EMX Marketplace facilitates purchases by Advertisers, but that EMX is not responsible for Advertisers’ payments. Publisher agrees that EMX shall only be liable to pay Publisher to the extent that EMX has received payment from Advertisers, and only to the extent Advertisers’ payments have cleared and constitute funds immediately available to EMX. EMX agrees to make every reasonable effort to bill, collect and clear payment from Advertisers on a timely basis. EMX reserves the absolute right not to make any payments if the Publisher violates any of the terms and conditions set forth herein.
2.3. Calculation of Balance. EMX will determine the Publisher’s due balances within the first week of each calendar month. This determination shall be calculated based on the amount of traffic during the prior month as counted by the EMX tracking system. Publisher shall notify EMX in writing if it disputes the calculation within 30 days after the last calendar day of the month in question. All EMX calculated payments after that period shall be deemed to be correct and final.
2.4. Disputes. If Publisher disputes all or part of a payment made by EMX, EMX shall pay the undisputed part, and the disputed part shall be negotiated between the parties in good faith until agreement is reached.
2.5. Taxes. EMX assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the EMX Marketplace, Publisher assumes complete and sole responsibility for any taxes owed as a consequence thereof. Publishers residing in the United States agree to provide their Federal Employee Identification Number to EMX for tax reporting purposes. In no event will payments be made on accounts that have not provided proper tax identification information. Such information will be used for no purpose other than for tax reporting purposes. International Publishers may be asked to complete appropriate forms for tax purposes.
3. Advertising Materials.
3.1. Linking and Trafficking Guidelines. Prior to displaying the first Advertising Materials specified in an Order, EMX shall provide Publisher with trafficking guidelines, linking instructions, URL, banner, and alternative text for the Advertising Material as appropriate. EMX may make changes to any Advertising Material upon 48 hours’ notice, via e-mail, telephone or fax. Publisher shall process such changes so as to deliver the Advertising Material correctly, clearly, and at the times and frequencies specified by EMX. In the event Publisher fails to run the Advertising Material properly, EMX may require appropriate delivery of additional Advertising Material and/or a proportional or total reduction in amounts payable.
3.2. Delivery of Advertising Material. EMX shall provide all Advertising Material to Publisher. EMX shall issue Orders to Publisher, and shall provide Publisher with appropriate instructions. If Publisher is unable to obtain the Advertising Materials from EMX on a consistent basis, Publisher shall cease delivering Advertising Material and shall contact EMX promptly, but in no event more than one business day after the problem first occurred. Publisher shall not resume the display of Advertising Materials until EMX directs Publisher to do so.
3.3. EMX HTML Insertion Code. Publisher shall place the EMX HTML Insertion Code on all appropriate pages within its Site(s). Publisher shall not alter, sell or disclose the EMX HTML Insertion Code in any way without EMX’s prior written consent. The EMX HTML Insertion Code for Advertising Material may not be used on a web page other than one located at Site approved by EMX and may not be distributed or submitted to any newsgroup, e-mail distribution list, chat room, guest books, or other location which would result in the execution of such code without a bona fide visit to a Site approved by EMX.
3.4. Modification of Advertising Material. Advertising Material must not be modified from its original format without consent from EMX. Publisher agrees to use the Advertising Material provided for displaying not more than one ad unit per ad placement per page view. Advertising Material cannot be placed in email messages. Publisher cannot alter, copy, modify, take, sell, reuse, or divulge any computer code for the Advertising Materials, except as is necessary to partake in the EMX Marketplace, provided, however, with the prior approval of EMX, the Publisher may, in certain instances, modify the Advertising Material computer code for purposes of inserting certain pre-approved language above or below the Advertising Material. Any language to be inserted must be approved in advance, in writing by EMX. If Publisher violates this provision, EMX, may, at its option, either reduce or eliminate any and all payments due hereunder, and/or terminate this Agreement as provided herein.
3.5. Recording of Service Counts. EMX shall have the sole responsibility for calculation of statistics, including Impressions and revenue numbers. Publisher understands that EMX’s reporting data may not be 100% accurate and that EMX may make adjustments to Publisher’s reporting data at the end of each calendar month to account for statistical errors. In the event that coding on Publisher’s Site(s) generates a substantial number of erroneous Impressions due to a technical problem such as a server malfunction, coding alteration or a mistake in entering code, Publisher agrees to respond any e-mail sent by EMX technical support within 48 hours. If Publisher does not respond to this alert within 48 hours, EMX reserves the right to not show any revenue-producing Advertising Material on the relevant Site(s).
3.6. Fraudulent Activity. Any methods and/or means direct or indirect, intentional, accidental, or incidental, that artificially and/or fraudulently inflate the volume of impressions or clicks is strictly forbidden. Final counts of impressions or clicks, revenue earned, and amounts to be paid to Publisher will be decided solely on the basis of reports generated by EMX’s advertising systems/ad server(s) and the assessment of publisher data by the EMX Policy Team. The prohibited methods described above include but are not limited to: framing an ad-banner’s click-through destination, auto-spawning of browsers, blind text links, running “spiders” against the Publisher’s own website, automatic redirecting of users, pop-up windows or any other technique of generating automatic or fraudulent (as determined by EMX, acting reasonably, or based on industry practices) click-throughs and/or impressions.
Advertising Material may not be placed on pages which reload automatically. Publisher may not require users to click on Advertising Material prior to entering a web site or any area therein or provide incentives of any nature to encourage or require users to click on Advertising Material. Publisher’s click-throughs of any link; use of any means of artificially enhancing click results; or use of any other of the prohibited methods or means set out in this Section 3.6 shall be a material breach of this Agreement, and upon such occurrence, EMX may terminate this Agreement effective upon delivery of notice and at its sole discretion withhold any payments due to Publisher. Such determination and action is at the sole discretion of EMX and is not in lieu of any other remedy available at law or equity. EMX’s ad server(s) will be the official counter for determining the number of Advertising Material delivered under an applicable Order, and amounts payable under this Agreement. Additionally EMX may withhold amounts relating to advertiser chargebacks or credits from payment to publisher if EMX and EMX Policy Team in its sole reasonable discretion, believes the performance related to them is fraudulent or invalid in nature, or if EMX was charged or credited back in their respect by any customer. Payment amounts displayed in EMX reporting systems may be adjusted at any time and may not reflect final payment to publisher as per adjustments made hereunder. EMX may withhold payment to Publisher even if there are no advertiser chargebacks.
3.7. Ad Placement. EMX reserves the right to limit ad placements on Site(s) in EMX’s sole discretion.
3.8 Ads.txt. Publisher shall include EMX’s information in Publisher’s Ads.txt file. EMX shall provide to Publisher the EMX information to include in the Ads.txt file.
4. Eligible Site(s).
EMX reserves the absolute right to refuse in its sole discretion to affiliate with any Publisher. Publisher shall not include any undesirable content (“Undesirable Content”) on its sites. The following are examples of sites that include Undesirable Content and are not eligible for participation in the EMX Marketplace:
- Sites which contain material that infringes the rights of others (including but not limited to copyright and other intellectual property rights) or which promote copyright piracy (i.e., unauthorized MP3s, roms, ‘warez’, emulators, or cracks, etc.).
- Sites with pornography, adult content, sexual or erotic material or sites that contain links to such content.
- Sites with displays of violence, obscene or vulgar language, abusive content, or content which endorses or threatens physical harm.
- Sites promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.).
- Sites that participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam).
- Sites promoting any type of illegal substance or activity (e.g. how to build a bomb, hacking, ‘phreaking’, etc.).
- Sites with illegal, false or deceptive investment advice or money-making opportunities.
- Sites that provide incentives of any nature to encourage users to click on ad banners (e.g. charity, sweepstakes, etc.).
- Sites that are under construction or incomplete.
- Sites with extremely limited audiences or viewership.
- Sites with any type of content that reasonable public consensus deems to be improper or inappropriate.
- Sites that contain any content violating Data Protection Laws or otherwise in breach of applicable Laws.
Publisher shall not include any Undesirable Content on Site(s). At any time EMX may investigate any Site to determine whether it includes any Undesirable Content or otherwise violates this Agreement. EMX regularly performs compliance audits. If EMX determines that any Site(s) include any Undesirable Content, EMX may discontinue media buying immediately upon notice, and Publisher shall immediately cease delivering Advertising Material provided by EMX on such Site(s). In no event will EMX or Advertisers be obligated to pay for Advertising Material delivered through Site(s) containing Undesirable Content after Publisher’s receipt of such notice from EMX.
5. Minimum Traffic.
EMX reserves the right to terminate this Agreement immediately should, according to EMX’s statistics, the number of Impressions delivered by Publisher total less than 30,000 unique users per month.
6. Representations and Warranties.
Publisher represents and warrants to EMX that:
6.1. All content, products, and services on the Site(s) (the “Site Content”) are legal to distribute; that Publisher owns or has the legal right to use the Site Content; and that the Site Content will not infringe any copyrights, trademarks, patents or other proprietary rights;
6.2. The Site(s) do not, and will not during the term of this Agreement, contain any material described in Section 4 of this Agreement;
6.3. The Site(s) are free of any “worm”, “virus” or other device that could impair or injure any person or entity;
6.4. It is generally familiar with the nature of the Internet and will comply with all Laws that may apply; and it will conduct its business in compliance with all applicable Laws; and
6.5. It has full legal power and authority under its organizational documents to enter into this Agreement and to perform the obligations contained herein; and the execution of this Agreement and the performance of Publisher’s obligations by Publisher will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which Publisher is a party or subject.
EMX warrants to Publisher that:
6.6. It has full legal power and authority under its organizational documents to enter into this Agreement and to perform the obligations contained herein; and the execution of this Agreement and the performance of EMX’s obligations by EMX will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which EMX is a party or subject.
7. Campaign Discontinuance.
EMX has the option, in its sole discretion, to discontinue an Order and/or stop buying under an Order, with or without cause, by giving a notice via e-mail, telephone or fax, to the Publisher’s authorized representative that will be effective immediately on the date when it is sent. If EMX elects to discontinue any Order, all unfulfilled contractual commitments subsequent to notice shall become null and void, and EMX shall pay Publisher only for Advertising Material delivered up to the date of the notice. In the event a specific volume commitment is made in an Order, EMX shall have no obligation to pay for Advertising Material delivered by Publisher prior to the date of the notice that exceeds the volume commitment specified in the Order or that varies significantly from the rate of delivery which existed prior to the notice of discontinuance.
8. Term and Termination.
8.1. Term. Subject to the termination rights of either party herein, the term of this Agreement shall be one (1) year from the date of last signature of the IO; and it shall renew automatically for subsequent one-year periods unless either party notifies the other at least 30 days before the end of the applicable period that it does not wish to renew the Agreement.
8.2. Termination for Convenience. Either party may terminate this Agreement for any reason upon the provision of 30 days’ prior written notice to the other party.
8.3. Termination by EMX. In accordance with Sections 3.6 (Fraudulent Activity) and 4 (Eligible Site(s)), EMX shall have the right to terminate this Agreement immediately in the event Publisher breaches Section 3.6 or Section 4. In addition, EMX may terminate this Agreement in accordance with Section 7 (Campaign Discontinuance).
8.4. Consequence of Termination. Upon receipt of a termination notice from EMX, or otherwise upon termination of this Agreement, Publisher agrees to immediately remove EMX’s HTML code for serving Advertising Material from its Site(s). In the event of termination, provided that Publisher has an outstanding account balance equal to or greater than $100, EMX will pay Publisher all legitimate moneys due during the next billing cycle.
9. Intellectual Property, No Use of Marks.
All Intellectual Property Rights that exist prior to the effective date of this Agreement, owned by the respective parties, are and shall remain the exclusive property of the party owning it (or, where applicable, the third party from whom its right to use the Intellectual Property Rights has derived). Neither party shall use the trade names or trademarks of the other party or Advertisers without prior written approval from the party owning such name or mark.
10.1 Compliance. The parties agreed that both EMX and the Publisher shall be considered Data Controllers in respect of all User Data processed, collected, accessed and/or used in relation to the EMX Marketplace. Subject to the specific requirements on the Publisher in this Section 10, EMX shall comply with all Data Protection Laws in respect of the performance of its obligations under this Agreement. The Publisher shall comply with all Data Protection Laws in respect of the performance of its obligations under this Agreement. Publisher warrants that it shall comply with the Self-Regulatory Principles Governing Online Preference Marketing promulgated by the Network Advertising Initiative (available at http://www.networkadvertising.org/aboutnai_principles.asp).
10.2 Consent and Notification.
10.3. Other Data Controllers. Where the Publisher uses User Data sourced from a Publisher Provider, Publisher will ensure that its Publisher Provider, and any of the Publisher Provider’s third parties, (i) obtain consent and provide notification as set out in Section 10.2, and (ii) comply with all applicable Laws including privacy Laws.
10.4 Data Subject Requests. The Publisher shall be responsible for responding to requests made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws (“Requests”) including any and all Requests received by EMX. EMX shall assist and cooperate reasonably with the Publisher in the fulfilment of the Publisher’s obligations under this Section 10.4. The Publisher shall maintain a complete, accurate and up to date written record of any and all Requests, the decisions made and any information exchanged. The Publisher shall promptly provide EMX with a copy of such record at any time on EMX’s written request.
10.5 Technical and Organizational Measures. Each party shall have in place appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing of User Data by or on behalf of the parties in accordance with Data Protection Laws. Each party shall have protection against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to User Data transmitted, stored or otherwise processed pursuant to this Agreement, including where appropriate data protection by default and/or by design measures, and all other such measures as may be agreed between the parties.
10.6 Reasonable Assistance. In respect of User Data where the parties act as joint Data Controllers, the parties will provide reasonable assistance and cooperate with each other to ensure each party’s compliance with Data Protection Laws.
10.7 Breach. In respect of any Personal Data Breach, the party who suffers such breach (“Data Breaching Party”), agrees to notify the other party (“Non-Data Breaching Party”) of a Personal Data Breach without undue delay (but in no event later than 48 hours after becoming aware of the Personal Data Breach); and the Data Breaching Party shall provide the Non-Data Breaching Party without undue delay (but in no event later than 48 hours after becoming aware of the Personal Data Breach) with such details as the Non-Data Breaching Party reasonably requires regarding the nature of the Personal Data Breach, any related investigations, the likely consequences, any measures taken by the Data Breaching Party to address the Personal Data Breach, and provide the Non-Data Breaching Party with regular updates on these matters.
EMX may disclose to Publisher the names of EMX’s Advertisers (“Client List”); and Publisher agrees that the Client List is sensitive and highly confidential information; that Publisher shall use the Client List solely for its performance under this Agreement; and that Publisher and its officers, employees, directors, members, agents and representatives shall not disclose the Client List to any other party for any purpose without the prior written consent of EMX. Publisher shall ensure that each of the persons or parties in the previous sentence have signed confidentiality agreements with Publisher consistent with the aforesaid sentence before it may disclose the Client List to them. Publisher may disclose to third parties the existence of its relationship with EMX; but it cannot disclose the Client List or the existence or nature of EMX’s relationship with any Advertisers included in the Client List. Publisher’s obligations under this paragraph shall continue in perpetuity following the termination of this Agreement.
Publisher agrees to indemnify, defend and hold EMX and its affiliates, and its and their respective employees, agents and representatives harmless from and against any and all third party claims, demands, liabilities, expenses, losses, damages and legal fees and expenses (including reasonable attorney’s fees) arising out of: (i) Publisher’s infringement of any copyright, patent, trademark or other intellectual property right of a third party; (ii) any violation by Publisher of applicable laws or regulations, including privacy laws and regulations; (iii) Publisher’s breach of any of the terms of this Agreement, including, without limitation, Sections 3.6 (Fraudulent Activity), 4 (Eligible Site(s)), and 10.2 (Consent and Notification); (iv) Publisher’s operation of the Publisher’s Site(s); and (v) Publisher’s use of the EMX Marketplace.
EMX agrees to indemnify, defend and hold Publisher and its affiliates, and its and their respective employees, agents and representatives harmless from and against any and all third party claims, demands, liabilities, expenses, losses, damages and legal fees and expenses (including reasonable attorney’s fees) arising out of: (i) EMX’s infringement of any copyright, patent, trademark or other intellectual property right of a third party; (ii) any violation by EMX of applicable laws or regulations, including privacy laws and regulations; and (iii) EMX’s breach of any of the terms of this Agreement.
13. Disclaimers, Exclusions and Limitations.
13.1. Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, EMX HEREBY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE EMX MARKETPLACE, EMX’S SERVICES, OR THESE TERMS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES WHICH MAY ARISE UNDER ENGLISH LAW FROM SECTIONS 13 TO 15 OF THE SALE OF GOODS ACT 1979, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
13.2. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL EMX BE LIABLE TO PUBLISHER WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR RESTITUTION, OR FOR BREACH OF STATUTORY DUTY OR MISREPRESENTATION OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT EMX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THESE TERMS, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL EMX’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS EXCEED THE TOTAL AMOUNT OF THE PAYMENTS MADE TO THE PUBLISHER HEREUNDER DURING THE PRECEDING TWELVE (12) MONTHS FROM THE DATE WHICH THE LIABILITY AROSE.
14.1. Inconsistency with Order. In the event of any inconsistency between an Order and this Agreement, the terms of the Order shall prevail.
14.2. Governing Law, Jurisdiction and Venue. This Agreement and all Orders, and any dispute or claim arising out of or in connection with them, shall be governed by, and construed in accordance with the laws of the State of New York, without regard for the conflict of law principles thereof. The Federal and State Courts located in New York County, New York shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.
14.3. Assignment. Publisher shall not assign or subcontract any or all of its rights or obligations under this Agreement without the prior written consent of EMX (such consent not to be unreasonably withheld or delayed). The original party to this Agreement shall still be fully responsible and liable for the performance of duties and deliverables under this Agreement after the assignment.
14.4. No Prior Agreements. This Agreement, together with all fully-executed Addenda, attachments and exhibits attached hereto, and all proper Orders, contains every obligation and understanding between the parties regarding the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements and understandings, if any, regarding the subject matter hereof. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies for, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
14.5. Notice. Any notice required to be delivered hereunder shall be in writing. Such notice will be deemed delivered (a) if delivered by pre-paid first class post, three business days after posting or at the time recorded by the delivery service, (b) one business day if sent by overnight courier service, and (c) immediately if sent electronically or by fax. All notices will be sent to the contact as noted on the IO or as notified in writing to the other party from time to time.
14.6. Severability, Rights Cumulative. If any provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision shall not affect the validity and enforceability of the rest of this Agreement. All rights and remedies hereunder are cumulative.
14.7. Headings. Section or paragraph headings used in this Agreement are for reference purposes only, and shall not be used in the interpretation hereof.
14.8. Export. Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable Laws, including United States export laws and regulations, to any country for which a government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
14.9. Anti-bribery. Both parties shall comply with all applicable laws and codes relating to anti-bribery and anti-corruption including but not limited to the United States Foreign Corrupt Practices Act, and the Bribery Act 2010.