GWBLOOMFIELD INC.

ADVERTISER TERMS & CONDITIONS

Terms & Conditions

This Bloomclicks Digital Advertising Advertiser Agreement (“Advertiser Agreement”), shall govern the relationship between Bloomclicks Digital Advertising (” Bloomclicks Digital Advertising” or “we”) and the Advertiser (“Advertiser”), whereby Advertiser may obtain access to the Digital Advertising (” Bloomclicks Digital Advertising”) of registered third-party affiliates (“Affiliates”) and publishers (“Publishers”), and related technology and software (” Bloomclicks Digital Advertising Ad Server”), to market customized advertisements and links provided by Advertiser and/or Bloomclicks Digital Advertising (“Ads,” as further defined below). The Bloomclicks Digital Advertising, as well as the services provided by Bloomclicks Digital Advertising in connection therewith (“Services”), are further described in the Insertion Order (“IO”) attached hereto and incorporated herein by reference (the IO, together with this Advertiser Agreement, the “Agreement”). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to “Advertiser” shall refer jointly to Advertiser as well as the applicable underlying client.

  1. Bloomclicks Digital Advertising/Services

Advertiser agrees to accept and pay for, and Bloomclicks Digital Advertising agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Bloomclicks Digital Advertising shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby Bloomclicks Digital Advertising will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registration, pop-ups, pop-unders, e-mail, graphics files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, Bloomclicks Digital Advertising Ads (as defined below) through the Bloomclicks Digital Advertising either:
Upon the execution of the Agreement, Advertiser must register on the Bloomclicks Digital Advertising website and create a unique, password-protected account (“Account”). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsible for any and all actions were taken under Advertiser’s Account, whether authorized by Advertiser or not. The advertiser must immediately notify Bloomclicks Digital Advertising of any unauthorized use of Advertiser’s Account. The advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that Bloomclicks Digital Advertising will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.

  1. Account

Upon the execution of the Agreement, Advertiser must register on the Bloomclicks Digital Advertising website and create a unique, password-protected account (“Account”). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsible for any and all actions were taken under Advertiser’s Account, whether authorized by Advertiser or not. The advertiser must immediately notify Bloomclicks Digital Advertising of any unauthorized use of Advertiser’s Account. The advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that Bloomclicks Digital Advertising will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.

  1. Ads

Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that Bloomclicks Digital Advertising shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that Bloomclicks Digital Advertising prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “Bloomclicks Digital Advertising Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that Bloomclicks Digital Advertising is the sole owner of any and all intellectual property rights associated with the Bloomclicks Digital Advertising Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Bloomclicks Digital Advertising Ads. Under no circumstances shall Bloomclicks Digital Advertising be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the IO(s). Advertiser shall submit all Advertiser Ads to Bloomclicks Digital Advertising for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Bloomclicks Digital Advertising’s prior express written consent, after the applicable Ad has been approved by Bloomclicks Digital Advertising. Notwithstanding the foregoing, Bloomclicks Digital Advertising shall have sole discretion with respect to the creation of the “subject” and “from” lines used in its e-mailing of any Ads. Bloomclicks Digital Advertising reserves the right, in its sole discretion and without liability, to change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Bloomclicks Digital Advertising. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where Bloomclicks Digital Advertising deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads (“Advertiser Products”), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Bloomclicks Digital Advertising or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Bloomclicks Digital Advertising shall, subject to the provisions set forth herein, comply with such request as soon as practicable but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of Bloomclicks Digital Advertising’s receipt of Advertiser’s cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.

  1. Placement

The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Bloomclicks Digital Advertising and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Digital Advertising” or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that Bloomclicks Digital Advertising and/or its Affiliates and Publishers may determine, in their respective sole discretion.

  1. Ad Codes

Unless otherwise stated in writing by Bloomclicks Digital Advertising, each Ad used by Bloomclicks Digital Advertising in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Bloomclicks Digital Advertising (“Ad Codes”). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by Bloomclicks Digital Advertising to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay Bloomclicks Digital Advertising a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser’s inability to provide such information, in the alternative. All determinations made by Bloomclicks Digital Advertising in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Bloomclicks Digital Advertising’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third parties.

  1. E-mail Marketing
  1. The following terms apply to all Ad Campaigns transmitted via e-mail by Bloomclicks Digital Advertising’s Affiliates on behalf of Advertiser. Any and all e-mail based Ads:
  2. shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003 (“CAN-SPAM”) and any and all Federal Trade Commission implementing regulations;

III.   must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property rights, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; and

  1. must not result in any consumer fraud, product liability or breach of contract to which Advertiser is a party or cause injury to any third party. Advertiser shall cause a valid physical postal address for Advertiser to appear in each e-mail Ad, along with with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). Bloomclicks Digital Advertising may make available, at a Bloomclicks Digital Advertising-designated FTP site (“FTP Site”), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Ad Campaigns transmitted by Bloomclicks Digital Advertising’s Affiliates for Advertiser under applicable IO(s). Advertiser shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by Bloomclicks Digital Advertising, or send its suppressed e-mail addresses to Bloomclicks Digital Advertising via e-mail no less than daily. If no such suppressed e-mail addresses are supplied by Advertiser, then Bloomclicks Digital Advertising may conclude that no such addresses exist. The suppression list and login provided by Bloomclicks Digital Advertising are deemed to be Confidential Information of Bloomclicks Digital Advertising, as defined hereinbelow. Suppression lists may not be used by Advertiser for any purpose other than to comply with applicable laws regulating e-mail transmissions. Advertiser agrees to process any unsubscribe requests within seven (7) days of being posted at the FTP Site.
  1. Payments

The rates for Actions shall be set forth in the applicable IO(s). Bloomclicks Digital Advertising will invoice Advertiser twice monthly. Unless otherwise set forth in the applicable IO, payment will be due to Bloomclicks Digital Advertising within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, Bloomclicks Digital Advertising may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half per cent (1.5 per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Bloomclicks Digital Advertising for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Bloomclicks Digital Advertising and/or any of its Publishers or Affiliates pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law.

7.1. Payment term under this agreement is NET15 or NET30 as agreed upon by the Advertiser. The Advertiser has 15 or 30 (calendar) days to pay the Invoice for the reported month. In the case of two-way interaction, cross payments are possible.

7.2. Minimum threshold amount under this agreement is 50 USD. Amounts less than 50 USD are rolled over to the next month. Amounts less than 500 USD are paid solely by PayPal/Payoneer or other related online payment systems as agreed upon by the Advertiser. Amount more than 500 USD will be paid solely by ACH or wire transfer.

7.3. All payments shall be calculated and paid in USD dollars/Euro/Pound only.

7.4. If payment is not received within ninety days of the due date, Bloomclicks Digital Advertising reserves the right to charge 2% interest per month on the outstanding amount and all the collection fees.

7.5. The Advertiser has 15 (calendar) days from the invoice date to make any changes or amendments to the Invoice received as well as send a confirmation for the numbers in it. If these changes or confirmations were not received within the indicated period of time the Invoice data (including numbers) are automatically considered correct and should be paid for in full.

7.6. The Advertiser must send hold reports during the 15 (calendar) days after the end of the reporting month. In case if hold reports were not sent during the stated period of time all leads must be considered as valid and paid in full.

7.7. In the exceptional case when the Advertiser cannot pay the invoice in full within 30 days after the end of reporting month, the Advertiser has to provide Bloomclicks Digital Advertising with a schedule of partial payments. The schedule shall contain an amount and exact date of payment.

7.8. The Advertiser shall be responsible for the payment of all taxes, banking costs, wire transfers and duties assessed in connection with payments made hereunder Bloomclicks Digital Advertising shall under no circumstance be responsible for such incurred costs.

7.9. Deliverables will be approved and paid for based on Advertiser’s numbers. Parties agree that the average discrepancy can be about 10%. In the case of a larger discrepancy, this should be negotiated between parties in writing.

7.10. Bloomclicks Digital Advertising reserves the right to suspend performance of its obligations hereunder and disconnect the services in the event the Advertiser fails to make timely payment hereunder or under any other agreement with Bloomclicks Digital Advertising until such Payment is executed.

  1. Leads/CPA/Unaccepted Actions
  1. In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay Bloomclicks Digital Advertising for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
  2. The Advertiser is entitled to confirm the final numbers for the previous Month within 5 – 10 calendar days after the end of reporting month. Any changes provided after this term are not taken into consideration thereof; and

III.   both parties determine is not a Valid Action (as defined below). Where bloomclicks Digital Advertising determines that such Action is a Valid Action, Advertiser must pay for same. A “Valid Action” means an individual person:

  1. is not a computer-generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
  2. in the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
  3. in the case of Leads-based Campaigns, has submitted the information that meets all of Advertiser’s criteria as set forth in the applicable IO. The data associated with any and all Lead/CPA-based Actions (“Action Data”) that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of Bloomclicks Digital Advertising, subject to any and all restrictions set forth herein (“Unaccepted Action Data”). Upon Advertiser’s acceptance of a Lead/CPA-based Action (and payment to Bloomclicks Digital Advertising therefor in accordance with payment terms set forth herein and in the applicable IO), Bloomclicks Digital Advertising shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:

VII. will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;

VIII. will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by Bloomclicks Digital Advertising;

  1. will not use the information contained in the Unaccepted Action Data to create any interactive online, CD-ROM or other derivative product;
  2. will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
  3. will notify Bloomclicks Digital Advertising as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to Bloomclicks Digital Advertising in the investigation and prosecution of any such unauthorized use or disclosure.
  1. Term/Termination
  1. The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon five (5) business days’ prior written notice. Upon termination or expiration of the Agreement for any reason:
  2. Advertiser will pay Bloomclicks Digital Advertising all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 hereinabove;

III.  any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
IV.any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.

  1. Warranty/Limitation of Liability

THE BLOOMCLICKS DIGITAL ADVERTISING, SERVICES, BLOOMCLICKS DIGITAL ADVERTISING ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED By BLOOMCLICKS DIGITAL ADVERTISING UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, BLOOMCLICKS DIGITAL ADVERTISING MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BLOOMCLICKS DIGITAL ADVERTISING DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. The BLOOMCLICKS DIGITAL ADVERTISING, SERVICES, Bloomclicks Digital Advertising ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. BLOOMCLICKS DIGITAL ADVERTISING HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND BLOOMCLICKS DIGITAL ADVERTISING DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. BLOOMCLICKS DIGITAL ADVERTISING HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND Bloomclicks Digital Advertising DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE BLOOMCLICKS DIGITAL ADVERTISING, SERVICES, BLOOMCLICKS DIGITAL ADVERTISING ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. BLOOMCLICKS DIGITAL ADVERTISING MAKES NO GUARANTEES AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL BLOOMCLICKS DIGITAL ADVERTISING BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF BLOOMCLICKS DIGITAL ADVERTISING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BLOOMCLICKS DIGITAL ADVERTISING WILL NOT BE LIABLE OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND BLOOMCLICKS DIGITAL ADVERTISING CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, BLOOMCLICKS DIGITAL ADVERTISING LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID To BLOOMCLICKS DIGITAL ADVERTISING BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. BLOOMCLICKS DIGITAL ADVERTISING SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.

  1. Representation and Warranties

Advertiser represents and warrants that:

  1. it has the power and authority to enter into and perform its obligations under the Agreement;
  2. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, “Laws”);
  1. it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, Bloomclicks Digital Advertising Ads, by Bloomclicks Digital Advertising, its Publishers and Affiliates, as contemplated by the Agreement;
  2. at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
  3. it will not disable “back” browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;

VII. Bloomclicks has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;

VIII.  for CPA and Leads Campaigns, the Ads, and/or the landing page from each Ad where an Action is completed (for example, Advertiser’s website page where an end-user is directed when such end-user clicks on the Ad, fill in a registration form or takes similar action in connection with the Ad) contains a prominent link to Advertiser’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to end-users regarding Advertiser’s use, collection and disclosure of their personal information;

  1. Advertiser shall fulfill all commitments made in the Ads;
  2. no Ad is targeted to end-users under the age of eighteen (18);
  3. prior to loading any computer program onto an individual’s computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are disclosed in Advertiser’s privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;

XII. the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:

XIII. contain any misrepresentations or content that is defamatory;

XIV. contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;

  1. promote or support gambling or sweepstakes or contests; or

XVI. contain any “worm,” “virus” or other devices that could impair or injure any person or entity;

XVII. The advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”); and (m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time.

  1. Indemnification
  1. Advertiser shall irrevocably defend, indemnify and hold Bloomclicks Digital Advertising, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:
  2. Advertiser’s breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;

III.the Ads, Advertiser Products and/or Advertiser websites; and/or

  1. any claim that Bloomclicks Digital Advertising is obligated to pay any taxes in connection with Advertiser’s participation hereunder.
  1. Confidentiality
  1. For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
  2. a party’s business plans, strategies, know-how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;

III.  the material terms of the Agreement and/or any associated IO(s);

  1. with respect to Bloomclicks Digital Advertising, the Unaccepted Action Data and suppression lists; and
  2. any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
  3. who need to know such information in order for the Receiving Party to perform its obligations hereunder; and

VII.  who has entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein? Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:

VIII.  is generally available to or known to the public through no wrongful act of the receiving party;

  1. was independently developed by the Receiving Party without the use of Confidential Information, or
  2. was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
  1. Non-Circumvention
  1. Advertiser recognizes that Bloomclicks Digital Advertising has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent Bloomclicks Digital Advertising’s relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Bloomclicks Digital Advertising hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Bloomclicks Digital Advertising, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that Bloomclicks Digital Advertising shall be entitled to:
  2. injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;.

III.  liquidated damages from Advertiser in the amount equal to one hundred per cent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and

  1. any and all other remedies available to Bloomclicks Digital Advertising at law or in equity.
  1. Force Majeure

Other than with respect to payment obligations arising hereunder, neither party will be liable or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Digital Advertising failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labour difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

  1. Miscellaneous
  1. Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:
  2. an acquirer of all or substantially all of such party’s equity, business or assets;

III. a successor in interest whether by merger, reorganization or otherwise; or

  1. any entity controlling or under common control with such party.
  2. Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of New York. In the event that any suit, action or other legal proceedings shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of either the United States District Court for the Southern District of New York or any New York State court of competent jurisdiction, located in New York County and further agrees to comply with all the requirements necessary to give such court jurisdiction.
  3. Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent 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. The Agreement, any exhibits attached hereto and any and all applicable IO(s) 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 any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.

VII. Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.

VIII. Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Bloomclicks Digital Advertising acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).

IN WITNESS WHEREOF, Bloomclicks Digital Advertising and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.

 

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