ADVERTISING SERVICES AGREEMENT

Effective March 28, 2023

This Advertising Services Agreement is made as of the Effective Date (defined below) by and between Great American Publishing Inc. dba Great American Media Services (“GAP” or “Publisher”) and Advertiser, and forms a material part of the Parties’ collective agreement, which also includes and is incorporated as if fully re-written herein, the Proposal and, in the event any portion of the Advertising Services Agreement includes GAP sending electronic communications on Advertiser’s behalf to all or part of a GAP database, the Email Distribution Data Processing Addendum (hereinafter, and collectively, the “Agreement”).

1. Definitions.

• 1.1 “Ad” means the advertising media specified in an applicable Proposal, and includes Message Content.
• 1.2   “Advertiser” means the party designated in an applicable Proposal that desires to have Ads placed on Publisher’s Publications.
• 1.3   “Applicable Laws” mean the data protection laws governing the control, use, sharing, renting, selling, or other types of handling of Personal Information and the email communication laws that control marketing communications that are applicable to Publisher and/or Advertiser, that are applicable to Publisher and/or Advertiser, including, but not limited to, the laws in Canada, the Canada Anti-Spam Legislation (“CASL”), as applicable; the laws in the European Union, European Economic Area, and United Kingdom, including the EU General Data Protection Regulation and UK General Data Protection Regulation (collectively, “GDPR”); and applicable laws in the United States of America (“U.S”), including but not limited to, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 U.S.C. Sect. 1101-13), and any regulations promulgated thereunder (“CAN-SPAM Act”), the California Consumer Privacy Act, as amended by the California Privacy Rights Act (“CCPA”), Colorado Privacy Act, Connecticut Act Concerning Personal Information Privacy and Online Monitoring, Michigan’s Identity Theft Protect Act, Act 452 Section 445.63(q)-(r), Virginia Consumer Data Protection Act, and Utah Consumer Privacy Act and implementing regulations of all such laws, whether such laws are in place as of the Effective Date or come into effect during the term of the Agreement.
• 1.4 “Message Content” means information that is provided by Advertiser to Publisher for distribution under the Proposal, including, but not limited to, audio and visual information, text, graphics, documents and offers for products and services.
• 1.5 “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer/individual or household or as similarly defined by Applicable Laws in regards to the processing data.
• 1.6 “Publication” means one or more websites, magazine or other print medium, and/or other electronic media distribution channels, e.g., email designed in an applicable Proposal.
• 1.7 “Publisher” means GAP, the party designed in an applicable Proposal responsible for placing Ads on its Publications on behalf of Advertiser.
• 1.8 “Proposal” means a proposal identifying the applicable Advertiser and Publisher, Publication and Ad(s), which may include information regarding the specifics of the advertisement(s) being placed, including but not limited to, publication type, issue quarter/season, section, year, ad size, color, frequency, notes, amount to be paid, etc.
• 1.9 “Sender” means “sender” as defined under the CAN-SPAM Act.
• 1.10 All defined terms in any applicable Email Distribution Data Processing Addendum shall have the same meaning throughout.
• 1.11 Each of the afore-defined terms shall be equally applicable to the singular and plural forms of the terms defined.

2. Ads

• 2.1 Scope of Services.   Publisher agrees to provide advertisement services to Advertiser within the United States (“U.S.”) (the “Services”), and does not purport to extend its professional services to any entity, recipient or resident located or residing outside the US who uses a non-U.S.-based internet service provider or who uses a computer system located outside the U.S. to access electronic messages.
• 2.2 Advertiser’s Representations and Obligations
  • 2.2.1   Advertiser represents, warrants, and covenants to Publisher that at all times:
    • Any Ad materials, including applicable Internet sites, Advertiser submits/delivers to Publisher, or has submitted to Publisher via a third-party advertising agent, does not violate applicable law, including the civil and, intellectual property rights of any third party;
    • Advertiser is fully authorized to use and publish the entire contents and subject matter of all requested Ad(s) (including, without limitation, any and all text, graphics, URLs, and Internet sites to which URLs are linked, illustrations, labels, sketches, names, images, photographs, trademarks, copyrighted material, or claims made by the ad);
    • Any Message Content/Ad material submitted/delivered to Publisher for publication is true and correct and complies with the Applicable Laws, and is free from libel, plagiarism, copyright or trademark infringement, intellectual property, invasion of privacy or any other claim based on the content and/or form of the advertisement, and publication thereof will not violate or infringe any copyright, trademark, right of privacy or any other statutory or common law property right of any person;
    • Advertiser has the full corporate rights, power and authority to enter into the Agreement and to perform the acts required of it hereunder, and its execution of the Agreement does not and will not violate any agreement to which it is a party or by which it is otherwise bound, or any applicable law, rule or regulation; and
    • Each applicable Internet site is controlled by Advertiser and operated by Advertiser or its independent contractors, is functional and accessible at all times, and is suitable in all respects to be linked to from the applicable site containing the Ad(s).
  • 2.2.2 Advertiser will not provide or otherwise transfer to Publisher any Personal Information under Applicable Law, which includes, but is not limited to, any email, personal, or contact information, for any individual or entity residing in Canada or having an IP Address in Canada, or for any individual residing outside the U.S., including, but not limited to, individuals in the European Economic Area or having an IP Address outside the U.S.
  • 2.2.3   Advertiser is responsible for a third-party agent/agency’s work that may be submitted, in full or in part, with the Message Content and/or Ad that may not conform or otherwise align to the terms of the Agreement.
  • 2.2.4   All Message Content and/or Ad material delivered to Publisher shall be free of libel and that publication thereof will not violate or infringe any copyright, trademark, right of privacy or any other statutory or common law property right of any person.
  • 2.2.5   Advertiser grants Publisher a nonexclusive, perpetual, worldwide, nontransferable license to use the Message Content and Ad material to provide the Services under this Agreement.  All Message Content and Ad material is subject to review and approval by Publisher and Publisher reserves the right to reject any Message Content.
• 2.3      Ad Requirements
  • 2.3.1   Advertiser understands that all Message Content and/or Ad material must be received by Publisher in acceptable formats, images, colors, and bleeds, as set forth in the Proposal, at least 14 days prior to the publication date. If Message Content and/or Ad material is submitted after this date Publisher may, in its sole discretion and without liability, refuse to run a submitted ad without any reduction to the agreed upon Proposal price.
  • 2.3.2   Any request to change or cancel an Ad must be written and signed by the Advertiser and received by Publisher no later than 60 days prior to the applicable ad deadline. Otherwise, Publisher, in its sole discretion and without liability, may refuse to change or cancel the Ad, in which case Advertiser shall nevertheless be responsible for full payment and performance of the applicable Proposal.
  • 2.3.3   Advertiser hereby grants Publisher the right to display its Ad(s) (and other related content such as thumbnail photos) on the designated Publications. Failure by Publisher to publish any requested Ad(s) does not constitute a breach of contract or otherwise entitle Advertiser to any legal remedy.
  • 2.3.4   Advertiser’s failure to comply with all applicable requirements of Publisher’s advertising specifics may delay or prevent delivery of the Ad(s).
  • 2.3.5   It is the Advertiser’s obligation, including any agent Advertiser may use to create Message Content and/or Ad material, to submit Ad(s) in accordance with Publisher’s advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Publisher’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Publications on which the Ads are to appear), other editorial or advertising policies, and material due dates).
• 2.4      Custom Marketing Services. The following apply to custom marketing services.
  • 2.4.1   Pricing includes content development, production, editing, copywriting, promotion, distribution, two rounds of corrections/changes and a final review per project. Additional change orders or rounds of proofs can be made at a cost of $250 per round of revision.
  • 2.4.2   Advertiser will designate one main point of contact for custom content manager to work with regarding creation, proofing and approval of all program elements.
  • 2.4.3 All custom projects require a nonrefundable 50% deposit prior to work beginning on the project.
  • 2.4.4   Following approval of the proposal and receipt of signed contract and deposit, custom content manager will create master timeline for all materials, allowing Advertiser to review and sign off on timeline. Advertiser is responsible for meeting all set deadlines. If deadlines are not met by Advertiser, custom content manager may be required to adjust the delivery date of final project.
  • 2.4.5 Any projects involving the delivery of leads must be paid in full before any leads are released.
• 2.5      Email Distributions Services. The following apply to email distribution / email lead blast services.
  • 2.5.1   Advertiser Responsibilities. Publisher grants Advertiser a nonexclusive, nontransferable limited right to use its email database of clients/leads for the sole purpose of communicating marketing content to advertise Advertiser’s products and services subject to the terms of the Email Distribution Data Processing Addendum, which is incorporated herein as if fully rewritten.
• 2.6      Publisher’s Discretion
  • 2.6.1   Publisher reserves the right, and may Publisher may, at any time, in Publisher’s sole discretion, and without liability:
    • (a) Remove and/or cancel any Ad(s) that contains content or links that do not meet Publisher’s advertising specifications.
    • (b) Cancel or reject any Ad, even if previously accepted by Publisher if Publisher considers the Ad’s  form, content or links to other websites (for online ads) to be misleading, in bad taste, adverse to public interest, in violation of applicable law or contract, or otherwise inappropriate for the character of the publication or website in which it is to be displayed
    • (c) Place the word “advertisement” with any ad copy that resembles editorial material
    • (d) Determine Ad location and/or position in the Publication, if, after using best efforts, Publisher cannot place ad in exact location/position specified in the applicable Proposal.
    • (e) Cancel the Proposal between Publisher and Advertiser, including without limitation for any breach of any part of the Agreement between the parties, including nonpayment.
    • (f) Redesign its Publications at its sole discretion at any time.
  • 2.6.2   Advertiser retains the copyright to any Ad, which may be subject to third-party agreement with an advertising agent, but grants Publisher a non-transferable license to reproduce, distribute, create derivative works, and display the Ad material for its own promotions and on its websites, email, and social media outlets. Subject to and in accordance with this Agreement, Advertiser has rights to any intellectual property or trademarks contained in any and all Message Content and grants Publisher a limited, non-exclusive, royalty-free, non-transferrable worldwide license to use, solely in connection with performing the Agreement: (a) Advertiser’s intellectual property and/or trademarks; (b) Advertiser’s domain names, website addresses, websites, and URL’s; (c) intellectual property and/or trademarks contained in any Ad and/or Message Content and provided to Publisher for distribution or use; and (d) any intellectual property and/or trademarks created by Publisher on Advertiser’s behalf as part of performing the Agreement.
  • 2.6.3 Unless the Advertiser specifies a return email address to be used, Publisher will ensure that any message it transmits pursuant to this Agreement will contain a functioning return email address.  However, if Advertiser specifies a return email address to be used, then Advertiser will be responsible for ensuring that such email address is functional.
  • 2.6.4   Publisher will ensure that any marketing message that it sends pursuant to this Agreement includes a functional mechanism that allows each recipient to opt out of receiving future marketing e-mail messages from Advertiser and that any opt-out request is honored within 10 business days of the opt-out request.  For up to 30 calendar days after sending Advertiser’s message, Publisher will collect opt-out requests related to such message and will apply any such requests to the mailing list that Publisher uses to provide Services to Advertiser under this Agreement.  In connection with this 30-day collection period, Publisher will forward to Advertiser on a weekly basis (Wi-Fi necessary) an updated Publisher Opt-Out List for the Advertiser’s CAN-SPAM Act compliance purposes, which Advertiser may use for the sole purpose of limiting its future email or other electronic communications to email addresses included on the List. Advertiser may not use the Publisher Opt-Out List for any other purpose including Advertiser may not sell or transfer the information in the form of a mailing or other list.
  • 2.6.5   Publisher is not responsible for the performance of the email campaign and does not provide any warranties or promises regarding the results of any email campaign.  The success rate of the email campaign depends on many factors outside of Publisher’s control.
  • 2.6.6   Publisher acknowledges that Advertiser owns all right, title, and interest in, to and under the Advertiser’s Intellectual Property and that Publisher shall not acquire any proprietary rights therein. Any use by Publisher or any representative of Publisher of any of Advertiser’s Intellectual Property and all goodwill associated therewith shall inure to the benefit of Advertiser.
  • 2.6.7   Publisher’s sole liability for breach of this Section 2 shall be to refund the pro-rata portion of amounts paid for the unfulfilled advertising term, if any.
• 2.7      Advertiser’s Responsibilities
  • 2.7.1   Advertiser agrees that for purposes of the Applicable Email Communication Laws, it is the Sender of Message Content and is responsible for complying with the duties assigned to a Sender under the Applicable Law.
  • 2.7.2   Advertiser agrees that all Message Content and/or Ad content is subject to review and approval by Publisher and that Publisher retains the full and absolute right to reject and prohibit any Message Content and/or Ad to be distributed under the Agreement.
  • 2.7.3   Advertiser agrees that Message Content submitted to Publisher shall not sell, market, advertise either directly or indirectly or link to a message or website that advertises for any firearms, alcoholic beverages or products, tobacco, gambling or gambling services, illegal drugs, pornography or obscene material, prostitution, or any other product or service that a minor is prohibited by law from purchasing, viewing, possessing, participating in, or otherwise receiving, including any items prohibited under California Business & Professional Code §22580(i).
  • 2.7.4   Advertiser shall ensure that all Message Content and/or Ad content complies with Applicable Email Communication Laws and all laws governing advertising content including, but not limited to, the Federal Trade Commission Act and the Lanham Act.
  • 2.7.5   Advertiser shall specify “From” line and “Subject” line or heading information to be used with the Ad that is not false, deceptive or misleading to recipients.
  • 2.7.6   Advertiser shall provide a valid physical postal address within the body of the Ad.
  • 2.7.7   Advertiser shall provide to Publisher the email addresses of any individuals who have opted out of receiving email communications from Advertiser, so that Publisher may strike such addresses from the email distribution list it uses to distribute the Advertiser’s messages pursuant to this Agreement. Publisher may not use the Advertiser Opt-Out List for any other purpose. The names of any individuals or entities that voluntarily opt-out of receiving Advertiser emails must be provided to Publisher within 5 calendar days of Advertiser receiving the opt-out.

3. Payment Terms and Conditions

• 3.1      The Services provided by Publisher shall be at the pricing stated in the applicable Proposal. The Services provided by Publisher shall be at the pricing stated in the applicable Proposal.
• 3.2      Cancellations must be made in writing or via email to the persons/entities identified in the Proposal. If the applicable Proposal is cancelled for any reason by Advertiser or by Publisher, or if ad publishing frequency is decreased at any point during the applicable Proposal period, Advertiser shall be liable for and shall pay, the increased per ad rate (short rate) applicable to the number of ads actually run (e.g. if advertiser committed to 12 ads but only 6 ads ran, Advertiser shall pay for 6 Ads at the 6-ad rate instead of the 12 ad rate).
• 3.3      All payments due are due within 13 days of the invoice date. All invoices and tear sheets will be sent to Advertiser as directed, via email.
• 3.4      If lead generation is part of the Proposal, Advertiser must pay 50% of the payment is due immediately with the remaining 50% due at the lead generation program’s launch. Payment must be made in full before delivery of the leads.
• 3.5      Publisher accepts most major credit cards. A 4% service fee is added to all credit card transactions; though the service fee will be waived if the invoice is paid through Publisher’s online payment portal. ACH transactions are free.
• 3.6      Advertiser shall notify Publisher in writing of any dispute with an invoice along with substantiating documentation/a reasonably detailed description of the dispute within 20 business days from the Advertiser’s receipt of such invoice. Advertiser will be deemed to have accepted all invoices for which Publisher does not receive timely notification of dispute, and shall pay all undisputed amounts due under such invoices within the period set forth in the applicable Proposal. The Advertiser and Publisher shall seek to resolve all such disputes expeditiously and in good faith. Except for invoiced payments that Advertiser has successfully disputed, Advertiser shall pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 7% per month or the highest rate permissible under applicable law. Advertiser shall also reimburse Publisher for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
• 3.7      Publisher’s rates and charges do not include any amounts for taxes, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any taxing authority on such amounts.  Advertiser agrees to pay all applicable taxes levied by any tax authority based upon this Agreement, any Proposal and/or any Services performed by Publisher, excluding any taxes based upon Publisher’s income.
• 3.8      Publisher may refuse to complete future program components (without further liability to Advertiser) if Advertiser has failed to pay an account when due or has paid with a bounced check or other uncollectible funds.
• 3.9      An Advertiser’s failure to pay invoices properly and timely may result in additional charges, including bank interest calculated daily and compounded monthly, up to the extent permissible by law. In addition to these additional charges, Advertiser or Advertiser’s Agency shall be responsible for reimbursing Publisher’s for costs and expenses, including, but not limited to, reasonable attorneys’ fees incurred in seeking to collect any amounts owed.
• 3.10    In addition to any other rights, Publisher may immediately remove Advertiser’s Ad(s) in the event of non-payment by Advertiser within such time period. All sums payable by Advertiser to Publisher under this Agreement are exclusive of any sales tax, indirect or similar taxes chargeable on any supply to which those sums relate. All billing calculations are based solely on the ad impression or quick count metrics as calculated by Publisher (including, but not limited to CPM and CPC), not Advertiser or third party calculations, unless otherwise specified in the Proposal.
• 3.11    Advertiser shall be liable to Publisher for any and all costs incurred by Publisher in attempting to collect past-due Ad fees and production charges, including without limitation contingency fees paid collection agencies and/or reasonable attorneys’ fees, court costs and other litigation expenses.

4. Confidentiality.

• 4.1      Any marked confidential information and proprietary data provided by one party, including the pricing of the Ads, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations, Notwithstanding the foregoing, the recipient may disclose such Confidential Information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing party sufficient prior notice in order to contest such request, requirement or order.  The obligations set forth in this Section 10 shall not apply to any information that (a) is publicly available; (b) is obtained by the receiving party from a third party as a matter of right; (c) is already known or independently developed by the receiving party; or (d) is required to be disclosed by law.
• 4.2      Publisher and Advertiser agree that in the event of any breach of Section 4, monetary damages are not a sufficient remedy or protection for the aggrieved party, and that the aggrieved party shall be entitled to injunction or other relief as may be deemed proper or necessary by a court of competent jurisdiction.

5. Term, Termination, and Effect of Termination

• 5.1      This Agreement or any Proposal may be terminated by either party if the other party:
  • (a)    Fails to perform any of its material obligations under this Agreement or any Proposal and fails to correct such failure within 20 days after receipt of written notice.
  • (b)       Ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors.
  • (c)       Becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization and such proceeding is not dismissed within 90 days after it is commenced.
• 5.2      Termination for Convenience.  Either party may terminate this Agreement upon 30 days’ written notice to the other party at any time that no Proposal is then in effect.
• 5.3      This Agreement terminates by natural expiration when the terms of the Proposal are performed by both parties.
• 5.5      Upon termination or expiration of this Agreement, Advertiser shall pay Publisher for all Services completed by Publisher prior to the termination date.
• 5.6      Upon termination or expiration of the Agreement, each party shall return to the other party any and all Confidential Information and/or Personal information of the other party.

6. Limitation of Liability

• 6.1      EXCEPT AS OTHERWISE STATED HEREIN, PUBLISHER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF RECIPIENTS TO ANY PUBLICATION AND/OR VISITORS TO OR PAGES DISPLAYED ON THE PUBLICATIONS OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE TIMES OF THE PUBLICATION. PUBLISHER DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY OTHER LOSS, INJURY, COST OR DAMAGE SUFFERED BY ADVERTISER OR ANY THIRD PARTY. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS. THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT. IN NO EVENT SHALL ANY PARTY BE LIABLE TO ADVERTISER FOR AN AMOUNT IN EXCESS OF THE TOTAL DOLLAR AMOUNT RECEIVED OR RECEIVABLE BY PUBLISHER FROM ADVERTISER FOR THE SPECIFIC AD AT ISSUE.
• 6.2      Publisher’s cumulative liability to Advertiser in the event Publisher fails to publish an Ad or the Ad contains errors attributable to Publisher will not exceed the fee(s) paid or payable to Publisher for the Ad at issue. Publisher is under no obligation to check the advertising material made available for accuracy, completeness, quality, or for any other reason. Advertiser’s sole remedy against Publisher in the event Publisher fails to publish an Ad or the Ad contains errors attributable to a third party, i.e., printing or distribution partner, will be limited to having the Ad published at a later date, not to exceed six (6) months from the original publication date. If Publisher is unable to re-publish the Ad within the six (6) month period, Publisher will reimburse Advertiser for all fee(s) paid to Publisher for the Ad at issue. UNDER NO CIRCUMSTANCES SHALL PUBLISHER BE LIABLE TO ADVERTISER OR ADVERTISER’S AGENT FOR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE DAMAGES, LOST PROFITS OR LOSS OF GOODWILL, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH ANY SUCH CLAIM MAY BE BASED ARISING OUT OF OR RELATED TO THE PROPOSAL, THIS ADVERTISING SERVICES AGREEMENT, THE EMAIL DISTRIBUTION SERVICES AGREEMENT, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE.

7. Indemnification. Advertiser shall be solely responsible and indemnify, defend and save Publisher, its officers, directors, agents, employees assigns, and successors harmless at Advertiser’s sole cost Publisher for all liability, claim, action, loss, damage, or expense (including court costs, attorney’s fees, and any regulatory penalties) with arising out of, or relating to Publisher’s use of the Message Content and or final Ad content in connection with the Services, including but not limited to: (i) Advertiser’s failure to comply with Applicable Law; (ii) Advertiser’s breach of the Agreement, including any breach of the warranties and representations, confidentiality protections, Personal Information protections, and all others; (iii) Publisher’s use of the Message Content or Ad content that results in any third-party claim or lawsuit for libel, plagiarism, copyright or trademark infringement, intellectual property, invasion of privacy, or any other claim based on the content and/or form of the advertisement; (iv) Advertiser’s use of any Publisher provided email list that is used in violation of the Email Distribution Data Processing Addendum and/or for a security incident or data breach of the information contained on any such Publisher provided email list; or (v) any breach of any incorporated agreement, including the Proposal, the Email Distribution Data Processing Addendum, etc. Publisher agrees to promptly notify Advertiser as soon as it becomes aware of any claim and agrees to cooperate with Advertiser with respect to the defense and disposition of such claim.

8. Excused Performance/Force Majeure. Publisher shall not be liable to Advertiser or Advertiser’s Agency for any delays in the production or distribution of the Ad to any of the Publications in which an Ad is to be displayed, including without limitation if caused in whole or part by acts of God, governmental or quasi-governmental entity orders, fires, floods, explosion, epidemics, pandemics, acts of war/invasion/riot/civil unrest, national or regional emergency, labor or material shortages, compliance with any government order, rule, regulation, or any action taken by a governmental authority, cybercriminal espionage, hacking or interference; shortage of adequate power or telecommunications capabilities; or strikes or other labor disputes, riots or other acts of civil disorder, embargoes, transportation interruption of any kind, systems or other technological failures affecting Publisher’s website, or any other event beyond its reasonable control (a “Force Majeure Event”). In the event Publisher suffers a Force Majeure Event, Publisher shall give notice to Advertiser stating the estimated period of time the occurrence is expected to continue and shall use diligent efforts to end the failure to delay and minimize the effects of the Force Majeure Event. During the Force Majeure Event Advertiser may similarly suspend its performance obligations until such time as Publisher resumes performance.

9. Applicable Law and Venue. The Agreement is governed and interpreted solely in accordance with the substantive laws of Michigan. The parties further agree that any dispute or claim concerning advertising submitted hereunder shall be exclusively litigated in a court having competent jurisdiction in Michigan, which advertiser agrees shall have personal jurisdiction and exclusive over it.

10. Entire Agreement and Modifications. The Agreement, which includes the Proposal, Advertising Services Agreement and Email Distribution Data Processing Addendum (to the extent Advertiser engaged Publisher to provide email blast/least services, replaces and supersedes any prior agreements, understandings, or representations (oral or written) made by or between the parties and concerning this subject matter. This Advertising Services Agreement may not be amended or waived except in writing signed by both Publisher and Advertiser. Any terms and conditions appearing on the space order, purchase order, billing instructions, copy instructions or any other document from Advertiser, or Advertiser’s agent, are rejected and do not become a part of the contract between the parties.

11. General Provisions.

• 11.1    No joint venture, partnership, employment, or agency relationship exists between Advertiser and Publisher, and nothing in the Agreement shall be deemed to modify this relationship.
• 11.2    No provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.  Any consent by any party to, or waiver of, a breach of the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
• 11.3    Advertiser shall not assign or delegate any of its rights or obligations under this Agreement without the prior written consent of Publisher, which shall not be unreasonably withheld.
• 11.4    If any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be deemed modified to the extent necessary to make them enforceable.
• 11.5    Except as specifically provided herein, this Agreement and all addenda incorporated hereto constitute the entire understanding and agreement between the parties and supersedes any and all prior understandings and/or agreements between the parties with respect to the subject matter. No change, amendment or modification of any provision of this Agreement or waiver of any of its terms will be valid unless set forth in writing and mutually agreed to by the parties.
• 11.6    All notices given under this Agreement shall be in writing and mailed by email or overnight third-party delivery with tracking, and addressed to the parties at the addresses set forth in the Proposal or at such other addresses as the parties may designate in writing.
• 11.7    This Agreement shall be binding upon and inure to the benefit of Publisher and Advertiser and their respective legal representatives, successors and authorized assigns. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy or any nature whatsoever under or by reason of this Agreement.
• 11.8    No party may commence an action under this Agreement more than 2 years after the expiration of its term, or, in the event of a breach, more than 2 years after the occurrence of the breach, or, in the event the breach is not discovered by the injured party when it has occurred, more than 2 years after the breach could, in the exercise of due diligence, have been discovered by such party.
• 11.9    Advertiser and Publisher each separately and individually acknowledge and agree that any controversy that may arise under this Agreement, including any Proposal and Email Distribution Data Processing Addendum, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement.
• 11.10  If any action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged or actual dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
• 11.11  Upon termination of this Agreement, the provisions providing for the payment of fees and expenses (that accrued prior to termination), warranties, limitation of liability, protection of Confidential Information, indemnification and the miscellaneous provisions shall continue and survive in full force and effect.
• 11.12  This Agreement may be executed simultaneously, in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. Any signature of this Agreement or any addenda via e-signature, DocuSign, or similar technology and shall constitute execution of the Agreement or addenda by such party.
• 11.13  If there is a conflict between the Proposal, Advertising Services Agreement, and Email Distribution Data Processing Addendum, the order or priority shall be Email Distribution Data Processing Addendum, Proposal, and then Advertising Services Agreement.
• 11.14  This Advertising Services Agreement becomes effective on the date Advertiser executes the Proposal (the “Effective Date”).