NEXT MILLENNIUM MEDIA, INC. TERMS AND CONDITIONS
These Terms and Conditions (the “T&Cs”) shall apply to the registration of Advertisers and Media Companies and any use of or participation in Next Millennium Media, Inc.’s advertisement publishing services and technology services (“the Service”) offered by Next Millennium Media, Inc. or its affiliates, divisions or subsidiaries (“We”, “us” or “Next Millennium”). These terms and conditions (the “Terms and Conditions”) constitute a binding Agreement between you (“You” or the “Publisher”) and Next Millennium (on behalf of itself and its affiliates, divisions or subsidiaries) when you register, participate, or make any use of the Service. The Publisher and Next Millennium shall collectively be referred to as the “Parties” and individually as the “Party”.
You must read, agree to, and accept all of the terms and conditions contained in these T&Cs in order to use the Next Millennium website located at https://nextmillennium.io, all affiliated or associated websites or web pages, including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”), all services, applications and products that are accessible through the Site and all Next Millennium mobile applications that link to or reference these T&Cs (collectively, the “Services”).
These T&Cs and the Insertion Order executed by the Parties (hereinafter collectively referred to as the “Additional Terms and Conditions”) constitute the complete and exclusive statement of the agreement of both the Parties (the “Agreement”) with respect to the subject matter of this Agreement, and supersede all prior oral and written commitments, understandings, and communications between the Parties regarding such matter. Next Millennium may, at its sole discretion, amend the Agreement, from time to time, by displaying the revised version(s) of the same on the Site, without prior notice. Any continued use of the Services by the Publisher after the revised Agreement have come into effect shall be deemed as the Publisher’s consent to such revised Agreement. In the event of a conflict between these T&Cs and the Additional Terms and Conditions, these T&Cs shall control unless the other Additional Terms and Conditions explicitly state that they control.
Section I: Definitions
“Advertisements” means graphical, digital, interactive, and rich forms of media (including but not limited to banners, buttons, boxes, skyscrapers, and any other Standard IAB Units, text, brand wraps and surveys, skins, podcasts, videos, etc.) advertisements of the Advertiser, provided by the Advertiser to Next Millennium, for the purpose of being published by Next Millennium on the Publisher Site(s), in accordance with the Services.
“Advertiser” means any authorized advertiser (such advertiser may be Next Millennium itself, from time to time) utilizing the Site for the purposes of having its Advertisements published on the Publisher Site(s).
“Advertiser Deliverables” means any Advertisements, intellectual property, and any other information or materials that Next Millennium receives from an Advertiser, which Next Millennium has identified as necessary to enable Next Millennium to perform any Services agreed upon with and for the Advertiser.
“Advertiser Insertion Order” shall mean the insertion order issued by Next Millennium which specifies all of the Services, the Fees, and payment terms that Next Millennium and the Advertiser have agreed to, which shall be bound to these T&Cs.
“Advertiser Materials” means any Advertisements, Advertiser Deliverables, intellectual property, and any other information or materials that the Advertiser provides to Next Millennium in furtherance of the Services.
“Commission” means the commission rate and/or structure agreed between the Publisher and Next Millennium as consideration for the Publisher’s provision of the Publisher Site(s) to enable Next Millennium to perform the Services.
“Confidential Information” means Advertiser Deliverables, Advertisements, Work Product, trade secret information, proprietary business plans and methods, computer system architecture and network configurations, and any other information provided to, or created by, a Publisher to perform or assist in performing Services, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of a Publisher; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by Publisher prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by Publisher without use of another person’s Confidential Information.
“CPM” shall mean cost per mille, which is the aggregate cost of every 1,000 Advertisement Impressions.
“CTR” shall mean click through rate, which shall be the percentage of visitors that click on the Advertisement displayed on the Publisher Site, out of the total number of instances that such Advertisement is displayed on said Publisher Site.
“Current Version” means a version of the software that is currently being supported by its publisher.
“eCPM” shall mean the effective CPM, that shall take into account the fill-rate, by dividing the total Advertisement revenue by the total number of 1,000 Impression number blocks.
“Fees” means the fee amount/rate/payment structure agreed between the Advertiser and Next Millennium as consideration for the Services.
“Impression” shall mean the point in which an Advertiser is viewed once by a visitor, or displayed once on a Publisher Site. The number of Impressions of a particular Advertisement is determined by the number of times that particular Publisher Site is located and loaded.
“Insertion Order” shall mean the Advertiser Insertion Order or the Publisher Insertion Order, as the case may be.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.
“Publisher” means any authorized publisher utilizing the Site to advertise and provide advertising space on its own Publisher Site(s) to Next Millennium to publish the Advertisements and provide the Services to Advertisers.
“Publisher Deliverables” means intellectual property, and any other information, access, or materials that a Publisher provides to Next Millennium, which Next Millennium has identified as necessary to enable Next Millennium to perform the Services as per the Insertion Order.
“Publisher Insertion Order” shall mean the insertion order issued by Next Millennium which specifies all of the Services, the Commission, and payment terms that Next Millennium and the Publisher have agreed to, which shall be bound to these T&Cs.
“Publisher Materials” means intellectual property, and any other information or materials that a Publisher provides to Next Millennium under these T&Cs.
“Publisher Site” means website(s) provided by the Publisher, as specified in the corresponding Insertion Order, on which Next Millennium shall run the Advertisements.
“Next Millennium Team Software” means the online platform and reporting portal login accessed using Next Millennium’s downloaded team software that enables [please insert other feature] features for Publishers.
“Payment Method” means a method of payment as Next Millennium may accept from the Advertiser for payment of fees under an Advertiser Insertion Order, from time to time in its sole discretion.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Uplift” shall mean the incremental increase in the Advertisement revenue generated from the period prior to generation of the effective data to the time the corresponding invoice for such Advertisement revenue is issued.
“Publisher Content” means any data, feedback, content, text, photographs, images, video, music, or other information that the User posts to any part of the Site or provides to Next Millennium.
“Work Product” means any tangible or intangible results or deliverables that Publisher agrees to create for, or actually delivers to, Next Millennium as a result of performing the Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.
Section II: Account Registration
All Publishers shall apply to Next Millennium for use of the Services by registering for a unique Publisher account on the Site (“Account”).
A. Publisher Account Registration Requirements and Eligibility
The Publisher shall register for an Account as a Publisher, by providing all requisite information, in the prescribed form(s) available on the Site. Use of the Services is subject to Next Millennium’s prior approval and policies and procedures. Next Millennium reserves the rights at its sole discretion to accept, reject, or terminate such applications for a Publisher Account for any reason. To be eligible to continue to use the Services, the Publisher must remain in compliance with all of the terms and conditions of this Agreement.
By registering for an Account on the Site as a Publisher, by clicking to accept this Agreement when prompted on the Site, or by signing to accept the Publisher Insertion Order(s), the Publisher is deemed to have executed this Agreement electronically, effective on the date that the Publisher registered their Account or clicked to accept this Agreement, or accepted the Publisher Insertion Order. The Publisher’s Account registration constitutes an acknowledgement that they are able to electronically receive, download, and print this Agreement, the Publisher Insertion Order(s), and any amendments.
The Publisher represents, acknowledges, agrees, and affirms the following:
1. the Publisher shall use the Site and the Services solely for business purposes, and not for personal, household, consumer, or for any criminal or fraudulent use;
2. the Publisher shall and does comply with any licensing or registration requirements with respect to its business;
3. the Publisher is either a legal entity or an individual 18 years or older, with the full capacity to enter into legally binding contracts;
4. the Publisher shall be financially responsible for its use of the Site and the Services;
5. the Publisher shall perform its obligations as specified by any Publisher Insertion Order that such Publisher accepts, unless such obligations are prohibited by applicable law or this Agreement;
B. Publisher Representations and Warranties
The Publisher represents, acknowledges, agrees, and affirms that it is not the following:
1. a citizen or resident of a geographic area in which access to or use of the Site or Services is prohibited by applicable law, decree, regulation, treaty, or administrative act;
2. a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or
3. an individual, or an individual employed by or associated with an entity otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation.
The Publisher agrees that if the Publisher’s country of residence or other circumstances change such that the above representations are no longer accurate, that the Publisher shall immediately notify Next Millennium of the same and cease using the Site and Services forthwith.
C. Rights and Responsibilities
1. Next Millennium may discontinue the Services at its sole discretion any time without assigning any reason.
2. Proper identification of the Publisher will be required, at the time of opening the Account subject to the verification as per Next Millennium policy and procedures. All Publisher Accounts, at the time of registration and from time to time thereafter, shall be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm the Publisher’s identity and their ability to represent their business on Next Millennium, if it is a separate legal entity. The Publisher authorizes Next Millennium, to directly or through third parties, make any and all inquiries necessary to validate the Publisher’s identity and confirm their ownership of their email address or financial accounts, subject to applicable law. When requested, Publisher must provide Next Millennium with information about them and their business.
3. Any Publisher opening or operating an Account is deemed to have read, understood and accepted this Agreement and the applicable schedule of Next Millennium charges issued and amended from time to time by the Next Millennium through the Publisher Insertion Order(s), on the Site, or as otherwise notified by Next Millennium in writing.
4. Next Millennium reserves the right to avail and access Publisher identification-related data obtained through the Account registration of the Publisher.
5. Upon registering for an Account, the Publisher hereby represents, acknowledges, agrees, and affirms that the Publisher shall solely use the Account for the purpose of receiving the Services.
6. The Publisher agrees to provide true, accurate, and complete information on its Account and all registration and other forms they access on the Site or provide to Next Millennium, and to update the Publisher’s information to maintain its truthfulness, accuracy, and completeness. The Publisher agrees not to provide and to correct any information about their location, business, requirements, or the services their business provides that is or becomes false or misleading. Any violation of this section is a material breach of the Agreement.
7. The Publisher shall not to register for more than one Publisher Account without express written permission from Next Millennium, and the Publisher shall not to ask or allow an unauthorized person to their Publisher Account on their behalf, for their use or benefit.
Section III: Attributes of Accounts
A. Only one Account may be opened per Publisher. The Account limits shall be operated on passport number/registration no. basis and not on Account basis.
B. The grant to, and operation of Account and Services by a Publisher is purely personal in nature and not transferable under any circumstance.
C. Each Account shall possess a distinctive number, which shall be quoted in all correspondence with the Publisher relating to the Account and Services.
D. Next Millennium reserves the right without prior notice to the Publisher to debit the Publisher’s Account for any expenses, fees, withholding tax, tax, duty, or any other cost, service charges or expenses arising out of any transactions or operation of the Account with the Next Millennium as may be payable to the Government, or any regulatory authority as may be levied, from time to time. All applicable taxes shall be recovered as per tax laws in force. Failure to do so shall result in recovery of the service charge by Next Millennium in a manner as Next Millennium may deem fit along with such interest charges, if any, and/or withdrawal of funds from Account without any liability to Next Millennium.
E. The Parties hereby agree that if the Publisher opens further accounts with Next Millennium and/or subscribes to any of the products/services of Next Millennium or any of the Affiliates, and Next Millennium extends the Services to such accounts, products or services and the Publisher opts for use thereof, then this Agreement shall automatically apply to such further use of Account and Services by the Publisher.
F. This Agreement is in addition to and not in substitution for the specific terms and conditions, rules and regulations, procedures of Next Millennium following various types of accounts and all products, services offered to Publisher from time to time.
Section IV: Usage of Account/ Dormancy
A. In order to use the Service, the Publisher must be registered for an Account.
B. At the time of registration, the Publisher shall create a unique password. Transaction requests will be authorized only through the Publisher’s password via the registered Account.
C. If a Publisher’s Account remains dormant for a period of 180 days, any remaining balance in such dormant Account shall be deemed an unclaimed balance and shall be surrendered to Next Millennium.
D. In case of Next Millennium receiving official notice, or as and when Next Millennium becomes aware of it from any other reliable source, regarding the demise, winding up, dissolution or bankruptcy of a Publisher, Next Millennium may stop in its sole discretion operations immediately in the account and will not be obliged to allow any operation or withdrawal except on production of a Succession Certificate or other Court orders, from a Court of competent jurisdiction.
E. Any discrepancy in the Account activities for transactions and receiving of alerts should be promptly brought to the notice of Next Millennium by the Publisher in writing within five (5) days from the date of transaction, failing which the said activities of the Account and/or receiving of alerts shall be deemed to be finally and conclusively non-discrepant and accepted by the Publisher, for all purposes whatsoever. In the case of any error, Next Millennium reserves its rights, at all time to make adjusting entries to rectify the error without notice and inform the Publisher subsequently, and recover any amount wrongly paid or credited to the Publisher and/or any third-party together with any accrued interest charges. However, Next Millennium shall not be liable for any loss or damage due to such error(s) or any consequential loss arising therefrom to the Publisher and/or any third-party.
F. In accordance with this Agreement, the Publisher may be entitled to receive certain records from Next Millennium and/or Next Millennium’s Affiliates, such as contracts, notices, and communications, in writing (hereinafter collectively referred to as the “Records”). To facilitate the Publisher’s use of the Site and the Services, the Publisher hereby consents to being provided these Records by Next Millennium electronically instead of in paper form. The Publisher shall be responsible for retaining copies (whether soft copies or hardcopies) of all such Records duly communicated to the Publisher by Next Millennium. However, Next Millennium reserves the right, in its sole discretion, to communicate with the Publisher via postal service and other third-party mail services using the address under which the Account is registered. The Publisher’s consent to receive Records electronically shall remain effective until and unless it is expressly withdrawn in writing by the Publisher by contacting Customer Support. Withdrawal of Publisher’s consent to receive such Records electronically (“Withdrawal”), shall cause the Publisher’s access to the Site and the Services to be revoked, and the Publisher shall no longer be permitted to use the Site or the Services. Withdrawal shall be effective only after Next Millennium has had a reasonable period of time to process the request for Withdrawal. Please note that Withdrawal shall not apply to records and notices electronically provided by Next Millennium to the Publisher before the Withdrawal becomes effective.
G. The Publisher shall be responsible for keeping all contact information (including without limitation all email addresses and postal addresses) in Next Millennium’s records up-to-date by promptly notifying Next Millennium of its current contact information, as well as any changes to the same, as soon as those changes occur.
H. By entering into this Agreement, the Publisher acknowledges and confirms that the Publisher possesses all of the hardware and software necessitated to receive all electronic notifications and Records as may be provided by Next Millennium, such requirements which may be amended by Next Millennium from time to time, including without limitation:
1. a valid and current email address;
2. a computer system that operates on a platform like Windows or Mac;
3. a working internet connection;
4. Software, browsers, plug-ins, or other computer applications and programs identified on the Site in their Current Versions. The use of other browsers, or any of the afore-mentioned items in any version that is not the Current Version, may lead to compatibility issues;
5. a Current Version of a PDF reader; and
6. a computer and/or mobile device with an operating system capable of supporting the afore-mentioned items.
Section V: Security
A. Next Millennium shall not be liable to the Publisher or any third-party, if any person or entity gains access to Publisher’s password and/or mobile/computer device with Next Millennium’s Mobile and/or Computer Application, and the Publisher fails to inform Next Millennium. The transaction(s) done and/or instructions sent on the Account by the unreported and unauthorized user shall be considered legitimate and shall be acted and/or relied upon by Next Millennium. Next Millennium accepts no liability and shall not be held liable for compensation against any such resulting Publisher’s loss. Nor shall Next Millennium to the Publisher if any third-party or advertiser fails to pay the Publisher in connection with the Services.
B. The Publisher irrevocably and unconditionally undertakes to ensure that the Publisher’s password and other confidential information are kept confidential and to not let any unauthorized person have access to the mobile phone/computer and/or the password.
C. The security of the password must not be endangered or compromised by choosing a password that can be easily guessed, such as four (4) of the same numbers or numbers in sequence such as 1234.
D. The Publisher hereby acknowledges, agrees, and confirms that the Publisher’s registered mobile phone/SIM shall only be used by the Publisher and Publisher shall take all necessary precautions and care to ensure that the same are not misplaced, lost or stolen. If Publisher’s registered mobile phone/SIM is lost or stolen, Publisher shall immediately notify his/her/its mobile operator to block and prevent misuse of the mobile phone/SIM. The Publisher shall also promptly notify Next Millennium’s Customer Service to block access to his/her/its Account, failing which, Next Millennium shall not be held liable for any cost, charges, expenses, losses (direct, indirect or consequential), claims (including third party claims) or damages suffered or incurred by the Publisher. The time at which Next Millennium receives instructions to block access to the Account shall be determined and certified by Next Millennium at its sole discretion and such determination shall be binding and conclusive on the Publisher.
E. If the Publisher believes that his/her/its Account has been accessed without Publisher’s knowledge or consent, or that Publisher’s password has been fraudulently used, Publisher shall contact Next Millennium immediately to block the account.
F. Next Millennium shall not be required to independently verify the Publisher Instructions and shall be effective unless countermanded by further instructions from the Publisher within a reasonable time frame, as determined by Next Millennium in its sole discretion. Next Millennium shall have no liability whatsoever if it does not or is unable to stop or prevent the implementation of any such countermanded Publisher Instruction.
G. All instructions for operating the Accounts and availing Services shall be given in writing by the Publisher (“Publisher Instructions”) in the manner prescribed by Next Millennium. The Publisher is solely responsible for the accuracy completeness and authenticity of the payment instructions provided to Next Millennium and/or its Affiliates and the same shall be considered to be sufficient to operate the Accounts.
H. The Publisher Instructions shall be affected only after authentication of the Publisher in accordance with Next Millennium’s prescribed procedure for Account.
I. All the records of Next Millennium generated by the Publisher Instructions, (including the time of the transaction and payments requested when availing Services and using the Account), recorded shall be conclusive proof of the genuineness and accuracy of the transaction and accompanying Publisher Instructions.
J. When a Publisher completes providing payment instructions and the same are received by Next Millennium, transaction shall deemed to be fixed and finalized and Publisher may not subsequently raise any objections with respect thereto. Once the Publisher Instructions are received the transaction may not subsequently be changed or reversed in any way. Next Millennium may seek clarification on Publisher Instructions as and when it deems fit in its sole discretion.
K. Next Millennium may refuse to comply with the Publisher Instructions without assigning any reason whatsoever and shall not be under any duty to assess the prudence or otherwise of any Publisher Instruction and have the right to suspend the operations through standard process if it has reason to believe that the Publisher Instructions may lead or expose to direct or indirect loss or may require indemnity from the Publisher before continuing to operate Account.
L. The Publisher undertakes and agrees not to use or permit the use of Account and Services for any illegal, fraudulent, criminal, or improper purposes and shall comply with all applicable laws and regulations governing the Accounts. The Publisher shall be held liable for any illegal funds transfer and money laundering done through their Account.
Section VI: Services
A. Provided that the Publisher is in material compliance with this Agreement, Next Millennium shall provide the Publisher with the following Services:
B. Next Millennium shall work with Advertisers and the Publisher to publish Advertisements on the Publisher Site.
C. Next Millennium shall publish the Advertisements on the Publisher Site, with the intention of optimizing the Advertiser’s inventory for higher CTR, viewability, improved user experience and higher Advertisement revenue.
D. Next Millennium shall provide the Publisher with online reporting detailing the placement, inventory, and earnings of Advertisements or offers on Publisher Sites using the Publisher interface. Next Millennium shall endeavor, but does not warrant or guarantee, in any way, that it will fill 100% of the advertising Inventory on the Publisher Sites with paying Advertisements.
E. Any suspected discrepancies must be reported by Publisher within 30 days. Reasonable efforts will be made to resolve discrepancies, provided, however, that any resolution will be at Next Millennium’s discretion and will be final.
F. Next Millennium shall also provide the Publisher the ability to manage and exclude Advertisers and/or Advertisement through the Publisher interface on the Publisher Site(s).
G. INSERTION ORDERS – Next Millennium shall provide the Publisher with the specific Services specified by the Publisher as described in the corresponding Insertion Order. The Insertion Order shall contain the specific Services agreed to by the Parties, along with the corresponding Commissions to be paid to the Publisher with respect to those Services in the Publisher Insertion Order; along with the applicable payments terms for the same. Upon receiving the Insertion Order, if the terms of such Insertion Order are acceptable to the Publisher, then that User shall accept the Insertion Order in accordance with the manner specified therein. Once accepted, the Publisher shall be bound to the terms of the Insertion Order in addition to this Agreement.
H. ADVERTISER MATERIALS AND ADVERTISER DELIVERABLES – Next Millennium shall ensure that the Advertiser grants Next Millennium and the Publisher a limited, non-exclusive, non-sublicenseable, non-transferrable, revocable right to use and display the Advertiser Materials and Advertiser Deliverables as necessary solely for the performance of the Services. The Publisher hereby acknowledges and agrees that the Advertiser reserves all other rights and interests, including, without limitation, all Intellectual Property Rights, in and to the Advertiser Materials and Advertiser Deliverables. This license continues until it is terminated by either Party; provided, however, that a termination of this license does not, in and of itself, terminate any other agreement between the Parties, including, without limitation, payment obligations.
I. Publisher expressly authorizes Next Millennium, at Next Millennium’s sole discretion, to create a media kit specifically for said Publisher’s use with advertisers, including hosting the media kit on a domain name that is substantially similar to the Publisher’s business name. Publisher hereby grants Next Millennium a limited non-exclusive, revocable right to use and display Publisher’s trade names, logos, and intellectual property rights as reasonably necessary solely for the performance of the Services. Nothing in this Agreement requires Next Millennium to create such media kit. Publisher also expressly authorizes Next Millennium to communicate directly with Publisher’s advertisers to market the products and services of Next Millennium or in connection with the performance of the Services.
J. MEDIA COMPANY MATERIALS AND MEDIA COMPANY DELIVERABLES – The Publisher grants Next Millennium a limited, non-exclusive, revocable right to use and display the Publisher Materials and Publisher Deliverables as necessary solely for the performance of the Services. Publisher reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the Publisher Materials and Publisher Deliverables. Upon termination of this Agreement, the Insertion Order(s), or upon Publisher’s written request, Next Millennium shall immediately return all Publisher Materials and Publisher Deliverables to Publisher, and if requested, the Next Millennium further agrees to destroy all copies of Publisher Materials and Publisher Deliverables contained in or on Next Millennium’s premises, systems, or any other equipment or location otherwise under Next Millennium’s actual and/or constructive control, in accordance with any specific instructions as may be issued by the Publisher.
Section VII: Commissions and Payments
A. COMMISSIONS PAYABLE TO THE MEDIA COMPANY
1. In consideration for the provision of the Publisher Site(s) to Next Millennium for the purpose of running the Advertisements and performing the Services, Next Millennium shall pay to the Publisher the Commission specified in the accepted Publisher Insertion Order(s), at the rates and on the payment terms and the dates/frequencies specified therein. Next Millennium has no payment obligations for said Commission to the Publisher unless and until Next Millennium receives payment for the Services. Next Millennium shall not be liable to pay said Commission to the Publisher if for any reason Next Millennium does not receive payment from an advertiser or other third-party.
B. PAYMENT HOLDS
1. Notwithstanding any other provision of the Agreement and the applicable Insertion Order(s), and except as prohibited by applicable law, in the event that Next Millennium determines in its sole and absolute discretion that the Publisher has violated the conditions and restrictions of the Site, the Agreement, and/or the Insertion Order(s), Next Millennium may hold the disbursement of the Commission, and/or suspend or cancel the provision of the Services for such Publisher. Additionally, Next Millennium may also hold the Commission under the following circumstances, if Next Millennium in its sole discretion:
(a) requires additional information, such as Publisher’s tax information, constitutive or authorization documents, government-issued identification, address, or other important identity or contact-related information;
(b) has reason to believe the Commission accrued may be subject to dispute or chargeback;
(c) suspects fraud;
(d) determines that such hold is necessary in connection with any investigation; or
(e) is required to do so by applicable law.
2. In cases of fraud, abuse, willful misconduct, or violation of the Agreement and/or the Insertion Order(s) by a Publisher, Next Millennium reserves the right to revoke any payments and hold and reclaim ALL Commissions due to the Publisher (not just the Commission from the particular Publisher Insertion Order under investigation) unless prohibited by applicable law. Accordingly, Next Millennium shall have the right to demand and receive reimbursement from the Publisher, if Next Millennium:
(a) has reasonable basis to suspect fraud or criminal activity associated with such payment, withdrawal, or Insertion Order;
(b) discovers erroneous or duplicate transactions; or
(c) has supplied its Services in accordance with this Agreement yet receives a chargeback from the Payment Method used by the Advertiser in a corresponding Insertion Order.
3. The Publisher hereby consents to Next Millennium’s right to obtain such reimbursement by instructing Next Millennium to retain any Commissions accrued for such Publisher, either through set-off, or by any other lawful means. Failure to pay for reimbursements of chargebacks shall give rise to grounds for termination of the Account and revocation of the Publisher’s access to the Site.
1. In the event that the Publisher commits any other act or ommission which leads to a failure on part of the Advertiser to pay any Fees due, Next Millennium shall have the right to suspend or close the Publisher’s Account and revoke Publisher’s access to the Site. Notwithstanding other remedies available to Next Millennium under the law, the Publisher must pay Next Millennium upon first demand for amounts owed under the Agreement and/or applicable Insertion Order, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, Next Millennium shall reserve the right to set-off amounts due against other amounts received from or held by Next Millennium for the Publisher, report such behavior to any law enforcement authorities and/or regulatory authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution. The Publisher’s payment obligations to Next Millennium are not contingent upon and are independent from any payments owed to the Publisher. The Publisher shall make the payments required hereunder to Next Millennium regardless of whether any payments are due or outstanding to the Publisher.
Next Millennium may be required by federal and state law to collect certain tax withholding information for all Publishers. Publishers must submit this information upon activation of their account with Next Millennium. The accuracy and completeness of the tax information provided is the sole responsibility of the Publishers. No payments will be made to the Publishers until all required tax or other information has been provided. The Publisher shall pay all taxes (including excise, sales, use, consumption, value-added or withholding taxes), customs or import duties, or any other levies, tariffs, duties or governmental fees that are due or payable in connection with this Agreement (“Taxes”), with the exception of taxes on Next Millennium’s net income. Each party agrees to cooperate in good faith with respect to reasonable requests from the other party regarding Tax-related forms, documentation or other information relating to this Agreement that may be necessary or appropriate.
Section VIII: Relationship with Next Millennium
A. Next Millennium is under no obligation to introduce Advertisers to Publishers or help Advertisers find Publishers. Next Millennium makes no representations about, and does not guarantee or warrant the quality, truth, accuracy, qualifications, safety, or legality of, the Publisher Site(s), the Advertisement(s), the Advertiser Materials, Advertiser Deliverables, the Publisher Materials, or the Publisher Deliverables; the qualifications, background, or identities of Publishers; the ability of the Publisher to deliver the Publisher Site(s); the ability of the Advertiser to pay the Fees for the Services; or that a Publisher can or will actually run any given Advertisement on the Publisher Site(s), or perform background checks on the Advertisers or Publishers. The Publisher hereby acknowledges and agrees that any information on the Site and/or Insertion Order about another Advertiser or publisher, including without limitation feedback, composite feedback, including a strength or risk score, geographical location is based solely on data that Advertisers, the Publisher, and other publishers voluntarily submit to Next Millennium, and shall not constitute nor be construed as an endorsement, verification, testimonial, or recommendation by Next Millennium. The parties hereto are independent contractors and Publisher’s execution of this Agreement and Insertion Order(s) and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, employment, or joint venture between Publisher and Next Millennium.
B. COMMUNICATIONS FROM USER TO NEXT MILLENNIUM – All notices to Next Millennium or our Affiliates intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: One World Trade Center, Suite 8506 New York, NY 10007; or (c) in writing via email to [email protected], and shall be deemed effective upon receipt by Next Millennium. Next Millennium does not accept service of any legal process by email or mail; all such service should occur by hand delivery on Next Millennium or its registered agent for service of process.
C. SITE LICENSE AND INTELLECTUAL PROPERTY RIGHTS – Next Millennium grants to the Publisher a limited non-exclusive, non-sublicenseable, non-transferrable, revocable license to access and use the Site for the purpose of using the Services. The Publisher shall only access (or attempt to access) the Site or Services by the interface provided, and shall not use information from the Site or Services for any purposes other than the purposes for which it was made available. The Publisher shall not to use the Site or Services for offering any goods or services other than as specifically permitted by this Agreement and all accepted Insertion Order(s). The Publisher shall not do any of the following without Next Millennium’s express prior written consent:
1. sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Services in any way for any public or commercial purpose;
2. use any content of the Site or Services on any other website or in a networked computer environment for any purpose except User’s own viewing;
3. frame or link to the Site or Services;
4. attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Services unless expressly permitted by applicable law.
5. access Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Services.
6. use any content of the Site or Services in a manner that conflicts with the terms of this Agreement
7. make any representation, warranty, guarantee, claim or promise regarding the Site or Service
8. represent itself to be an employee, agent, partner or legal representative of Next Millennium for any purpose; and/or
9. create or purport to create any obligation, responsibility or liability on behalf of Next Millennium, including but not limited to any obligation, responsibility or liability arising from or related to billing, payment or collections of any amounts due or claimed to be due as a result of any transactions.
D. Next Millennium and its licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Services. The logos and names are trademarks of Next Millennium and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Agreement or Insertion Order(s) confers any license under any of Next Millennium’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
Section IX: Miscellaneous
A. UNAUTHORIZED ACCESS AND USE; SITE INTERFERENCE; MALICIOUS SOFTWARE – The Publisher shall not use any robot, spider, scraper, or other automated means to access the Site for any purpose without Next Millennium’s express written permission. The Publisher shall not:
1. access the audiovisual content available on the Site for any purpose or in any manner other than streaming;
2. take any action that imposes or Next Millennium reasonably believes may impose (in Next Millennium’s sole discretion) an unreasonable or disproportionately large load on the Site’s infrastructure;
3.copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of Next Millennium and the appropriate third party, as applicable;
4. interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site;
5. bypass any of Next Millennium’s measures to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
6. transmit spam, chain letters, or other unsolicited communications;
7. attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;
8. collect, harvest, retain, forward, or use any personally identifiable information, including Account names, from the Site;
9. access any content on the Site through any technology or means other than those provided or authorized by the Site;
10. directly or indirectly, advertise or promote another website, product, or service or solicit other Advertisers or Publishers for other websites, products, or services; or
11. post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of Next Millennium or any third party.
B. THIRD-PARTY VERIFICATION – The Site makes available various services provided by third parties to verify a Publisher’s credentials and provide other information. Any information or content expressed or made available by these third parties or any other Advertisers and Publishers is that of the respective author(s) or distributor(s) and shall not be deemed to be the stance, opinion, or belief of Next Millennium. Next Millennium neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than Next Millennium’s authorized employees acting in their official capacities.
C. LINKS AND APPLICATIONS – The Site may contain links to third-party websites. The Site may also contain applications that allow the Publisher to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their licensors. Next Millennium does not warrant or guarantee access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. The Publisher hereby acknowledges and agrees that Next Millennium is not responsible or liable for the availability or accuracy of third-party websites; or the content, advertising, or products on or available from third-party websites. The Publisher shall access third-party websites by clicking on a link, or installing an application at the Publisher’s sole risk and discretion.
D. MOBILE AND OTHER DEVICES – When using the Next Millennium mobile applications, the Publisher hereby acknowledges that the Publisher’s carrier’s normal rates and fees, such as text messaging and data charges, shall still apply, and that said mobile applications may not contain the same functionality available on the Site.
E. SITE UPDATES – Next Millennium may, from time to time, in its sole discretion, without notice to Publisher, develop and provide Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. The Publisher hereby agrees that Next Millennium does not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. The Publisher shall promptly download and install all Updates and acknowledge and agree that Services or portions thereof may not work properly should you fail to do so. The Publisher further agrees that all Updates will be subject to the terms of this Agreement, unless otherwise provided in terms associated with such Update. Next Millennium reserves the right, at any time, to modify, suspend, or discontinue Services or any part thereof without notice. The Publisher hereby agrees Next Millennium shall not be liable to the Publisher or any third party for any modification, suspension, or discontinuance of Services or any part thereof. Updated T&C’s may be posted periodically on Next Millennium’s website. Continued use of the Services following the posting of such updated T&C’s shall constitute Publisher’s consent to be bound by such updated T&C’s.
F. CONFIDENTIALITY –
1. Unless otherwise specified in the Agreement, all information exchanged during the course of the Agreement (“Confidential Information”) shall be regarded as confidential between the Parties and shall not be disclosed to any unauthorized person or used by the recipient other than for the purpose of the business transaction to which it relates. Any authorized disclosure to another person(s) shall be on the same terms as to confidentiality as contained in this clause. Parties hereby agree to make available Confidential Information only to those of their employees who need to have access to it for the purposes of this Agreement and to obligate such employees correspondingly to the extent legally permissible.
2. If, for the purposes of this Agreement, a Party discloses any Confidential Information to its employees, it shall notify such employees of the confidential nature thereof and make all necessary efforts and take all precautions to bind such employees to keep the Confidential Information strictly confidential.
3. During and after the tenure of this Agreement if any Confidential Information is received by a Party under or by virtue of this Agreement the same shall be maintained in the strictest of confidence and trust.
4. The obligation of confidentiality and limited use shall survive termination of this Agreement and continue even after the termination or expiration of this Agreement.
5. If and when Confidential Information is no longer needed for the performance of the Services for an Insertion Order or at Advertiser’s and/or the Publisher’s written request (which may be made at any time at Advertiser or Publisher’s sole discretion), the Party that received Confidential Information, shall, at its expense, promptly destroy or return the disclosing party’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The Publisher that received Confidential Information agrees to provide written certification to the other Publisher disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing Publisher’s written request for such certification.
6. Without limiting this Section, neither the Publisher nor Next Millennium shall not publish, or cause to be published, any other Publisher’s and/or Party’s Confidential Information or Work Product, except as may be necessary for performance of the Services for the Insertion Order(s).
G. WARRANTY DISCLAIMER – The Site and the Services are provided “as is” and on an “as available” basis. Next Millennium makes no express representations, guaranties, promises, statements, estimates, or warranties (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE), express or implied, with regard to the Site, the Services, Work Product, or any activities or items related to this Agreement or the Insertion Order(s). To the maximum extent permitted by applicable law, Next Millennium disclaims all express and implied conditions, representations, and warranties including, but not limited to, the warranties of merchantability, accuracy, fitness for a particular purpose, title, and non-infringement. Some jurisdictions may not allow for all of the foregoing limitations on warranties, so to that extent, some or all of the above limitations may not apply to the Publisher.
THE PUBLISHER ACKNOWLEDGES AND AGREES THAT NEXT MILLENNIUM EXTENDS NO WARRANTIES OF ANY NATURE TO OR BY ANY THIRD PARTY (INCLUDING CLIENTS OF PUBLISHER WHICH HAVE ACCESS TO THE SERVICES) OR WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, PRODUCT OR SERVICE NOT PROVIDED BY NEXT MILLENNIUM HEREUNDER.
THE PUBLISHER ACKNOWLEDGES AND UNDERSTANDS THAT THE SERVICES PROVIDED BY NEXT MILLENNIUM HEREUNDER MAY BE SUBJECT TO OCCASIONAL SERVICE INTERRUPTION. NEXT MILLENNIUM SHALL NOT BE RESPONSIBLE FOR DELAYS OR SERVICE INTERRUPTIONS CAUSED BY ACCIDENT, ACT OF NATURE, SYSTEM FAILURE, GOVERNMENT OVERSIGHT OR OTHER CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL. NEXT MILLENNIUM MAKES NO REPRESENTATION OR WARRANTY AS TO PERFORMANCE, SERVICE UP-TIME OR RESULTS.
Section X : Liability And Indemnities
A. LIMITATION OF LIABILITY – The Parties agree that Next Millennium shall not be liable for any damages or losses arising out of or in connection with the Agreement and/or the Insertion Order(s), including, but not limited to:
- The Publisher’s use of or inability to the Site or Services;
- delays or disruptions in the Site or Services;
- viruses or other malicious software obtained by accessing, or linking to, the Site or Services;
- glitches, bugs, errors, or inaccuracies of any kind in the Site or Services;
- damage to the User’s hardware device from the use of the Site or Services;
- the content, actions, or inactions of third parties’ use of the Site or Services;
- a suspension or other action taken with respect to the User’s Account;
- the Publisher’s reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- the Publisher’s need to modify practices, content, or behavior or the Publisher’s loss of or inability to do business, as a result of changes to the Agreement and/or the Insertion Order(s).
The liability of Next Millennium, its licensors, and third-party service providers to the Publisher for any claim arising out of or in connection with this Agreement and/or the Insertion Order(s) shall not exceed the lesser of: (a) $50,000; or (b) any Commission retained by Next Millennium with respect to Insertion Order(s) on which Publisher was involved during the six-month period preceding the date of the claim. These limitations will apply to any liability, arising from any cause of action whatsoever arising out of or in connection with this Agreement and/or the Insertion Order(s), whether in contract, tort (including negligence), strict liability, or otherwise, even if advised of the possibility of such costs or damages and even if the limited remedies provided herein fail of their essential purpose. Some jurisdictions do not allow for all of the foregoing exclusions and limitations, so to that extent, some or all of these limitations and exclusions may not apply to the Publisher.
EXCEPT FOR THE INDEMNIFICATION PROVISIONS SET FORTH ABOVE, UNDER NO CIRCUMSTANCES SHALL NEXT MILLENNIUM BE LIABLE TO ANY PARTY OR PUBLISHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF EXPONENTIAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE RELATIONSHIP SET FORTH HEREIN.
B. RELEASE – The Publisher hereby releases Next Millennium, its Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, representatives, members, managers, shareholders, trustees, assigns, executors, affiliates, agents, subsidiaries, parents, advertisers, contractors, and employees from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute that the Publisher may have with another Publisher, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Services provided to Advertiser on the Publisher Site(s) and requests for refunds based upon disputes.
C. INDEMNIFICATION – The Publisher shall indemnify, defend, and hold harmless Next Millennium, its Affiliates, and our respective directors, officers, employees, representatives, members, managers, shareholders, trustees, assigns, executors, affiliates, subsidiaries, parents, advertisers, contractors, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ and expert fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by the Publisher, a third party, or another Publisher against an Indemnified Party relating to: (a) use of the Site and the Services by Publisher, including any payment obligations incurred through use of the Services; (b) any Insertion Order entered into by Publisher, including, but not limited to, the classification of a Publisher as an independent contractor; the classification of Next Millennium as an employer or joint-employer of a Publisher; any employment-related claims, including without limitation those claims relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) the Publisher’s failure to comply with the Agreement, and/or any Insertion Order(s); (d) Publisher’s failure to comply with applicable law(s) and/or regulation(s) (the CAN-SPAM Act of 2003 and the COPPA Act of 2000, and/or any privacy law, rule or regulation); (e) Publisher’s negligence, willful misconduct, or fraud; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof (including but not limited to any trademark, copyright or patent, any right of privacy or publicity or any other intellectual property right) to the extent caused by the Publisher. Additionally, in no event shall Next Millennium, its licensors, or third-party service providers be liable for any special, consequential, incidental, punitive, exemplary, or indirect costs or damages, including, but not limited to, litigation costs, installation and removal costs, or loss of data, production, profit, or business opportunities.
Section XI : Term and Termination
A. TERM AND TERMINATION
1. The Agreement come into full force and effect on the later of the Effective Date or upon registration of an Account in the Publisher’s name, and shall remain in valid and if force for the duration of the Publisher’s use of the Site or Services, unless otherwise terminated earlier in accordance with the provisions of this Agreement. Unless both Parties expressly agree otherwise in writing, either Party may terminate this Agreement in its sole discretion, at any time, without explanation, upon written notice to the other, which shall result in the termination of the Insertion Order(s) as well, except as otherwise provided herein. Publisher must provide written notice of termination by both certified mail to One World Trade Center, Suite 8506 New York, NY 10007 and via email to [email protected]
2. In the event of termination, the Publisher’s right to use the Site shall be automatically revoked, and Account shall be closed; however, (a) if the Publisher has any open Insertion Order(s) still in effect at the time of termination, the Publisher shall continue to be bound by this Agreement until all such Insertion Order(s) have expired/terminated (unless Next Millennium agrees to termination of the same, in its sole discretion); (b) Next Millennium shall continue to perform those Services necessary to complete any open Insertion Order(s) or related transaction between the Publisher and another Advertiser of Publisher; and (c) the Publisher shall continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Insertion Order(s), whichever is later, to Next Millennium for any Services. Termination of this Agreement for any reason shall not release the Publisher or Next Millennium from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
3. Without limiting Next Millennium’s other rights or remedies, Next Millennium may temporarily suspend, indefinitely suspend, or permanently revoke the Publisher’s access to the Site and refuse to provide any or all Services to the Publisher if: (i) the Publisher breaches the letter or spirit of any terms and conditions of this Agreement or any Insertion Order(s); (ii) Next Millennium suspects or becomes aware that the Publisher provided false or misleading information to Next Millennium; or (iii) Next Millennium believes, in its sole discretion, that the Publisher’s actions may cause legal liability for Next Millennium, or its other Publishers; may be contrary to the interests of the Site or the Publisher community; or may involve illicit or fraudulent activity. If the Publisher Account is suspended or closed, the Publisher may not use the Site under the same Account or a different Account or reregister under a new Account without Next Millennium’s prior written consent. If the Publisher attempts to use the Site under a different Account, Next Millennium reserves the right to reclaim available funds in that Account to pay for any amounts owed by the User to the extent permitted by applicable law.
4. Without limiting Next Millennium’s other rights or remedies, if the Publisher engages in actions or activities that circumvent the Site or otherwise reduce any amounts owed Next Millennium under the Agreement or any Insertion Order(s), the User shall pay Next Millennium, and authorize Next Millennium to charge the User, for all such amounts owed to Next Millennium and its Affiliates, all losses and costs (including any and all time expended of Next Millennium’s employees) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees. In addition, violations of the Agreement and the Insertion Order(s) may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
5. If the Account is closed for any reason, the Publisher shall no longer have access to data, messages, files, and other material pertaining to the closed Account kept on the Site. If practicable or required by law, Next Millennium shall retain this information along with all previous posts and proposals for a period of up to five years from the date of closure. However, the Publisher understands, acknowledge, agrees, and affirms that any closure of the Account may involve deletion of any content stored in the Publisher’s Account(s) for which Next Millennium shall have no liability whatsoever.
B. SURVIVAL – After this Agreement terminates, the terms of this Agreement and the Insertion Order(s) that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
Section XII : Dispute Resolution/Arbitration
A. DISPUTE PROCESS AND SCOPE
1. For any and all disputes arising between the Parties, the Parties agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the Insertion Order(s), or the Services or the Site (each, a “Claim”) in accordance with this Section XII. For the purposes of abundant clarity, Claims include, without limitation, all claims, disputes, or controversies arising out of or relating to the Agreement, the Site, the Services, any Insertion Order(s), any payments or monies claimed to be due to or from Next Millennium or its Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, expense reimbursement, termination, discrimination or harassment and claims arising under statutes or regulations addressing the same or similar subject matters, and all other legal claims arising out of or relating to the Parties’ relationship with one another, or the termination of that relationship. The Parties agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration.”
B. CHOICE OF LAW
1. This Agreement, the Insertion Order(s), and any Claim will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions.
C. INFORMAL DISPUTE RESOLUTION – Prior to serving a demand for arbitration of a Claim, the Publisher shall first notify Next Millennium of the Claim by both certified mail to One World Trade Center, Suite 8506 New York, NY 10007 and via email to [email protected] Next Millennium agrees to provide to the Publisher with notice at the Publisher’s email address on file (in each case, a “Notice”) and seek informal resolution of the Claim. All Notices from Publisher shall include the Publisher’s name, pertinent account information, a brief description of the Claim, and contact information, to enable Next Millennium to evaluate the Claim and attempt to informally and expeditiously resolve the Claim. Any Notice from Next Millennium to the Publisher must include pertinent account information, a brief description of the Claim, and Next Millennium’s contact information, enable the Publisher to evaluate the Claim and attempt to informally and expeditiously resolve the same. In the event that the Parties have not successfully informally resolved the claim within thirty (30) days from the date of the receipt of the Notice, the Parties shall, prior to resorting to arbitration or litigation, submit the Claim to mediation. The Parties shall engage in the mediation process in good faith once a written request to mediate has been given by any party to the Agreement. Any mediation initiated as a result of this Agreement shall be administered within the county of Los Angeles, California, by a Mediator selected by the Parties. The costs of any mediation proceeding shall be shared equally by the participating parties. If any party commences arbitration or litigation, without first attempting to resolve the matter through mediation, then that party shall not be entitled to recover attorney’s fees, even if they would otherwise be available to that party in any such action. In the event that the Parties have not successfully informally resolved the claim through mediation, the Parties shall proceed with the Claim to Arbitration in accordance with Section XII(D) hereunder.
D. MANDATORY BINDING ARBITRATION – This Mandatory Binding Arbitration provision (“Arbitration Provision”) applies to all parties to this Agreement. In the unlikely event the Parties are unable to resolve a Claim within thirty (30) days of the receipt of the applicable Notice, the Publisher, Next Millennium, and its Affiliates agree to resolve the Claim by binding arbitration before an arbitrator under the American Arbitration Association’s Commercial Arbitration Rules (“Rules”).
1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration Provision applies to any Claim the Parties may have and survives beyond the termination or expiration of their relationship. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. Except as otherwise provided herein, arbitration will be conducted in Los Angeles, California in accordance with the Rules. The Parties hereby agree that any Party shall have the right to appear at the arbitration by telephone and/or video rather than in person. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. Either Party may apply to a court of competent jurisdiction for provisional injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that Party may be entitled may be rendered ineffectual without such relief; the arbitrator will render the final judgment in the matter. The parties hereby consent to the exclusive jurisdiction of any state or federal court located in Los Angeles County, California. Regardless of any other terms of this Arbitration Provision, a Claim may be brought by or to, and remedies awarded by, an administrative agency if applicable law permits the agency to adjudicate, investigate or prosecute the claim notwithstanding the existence of this Agreement to arbitrate. Nothing in this Arbitration Provision will be deemed to preclude or excuse a Party from bringing an administrative claim before any agency in order to fulfill the Party’s obligation to exhaust administrative remedies before making a claim in arbitration, if any.
2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The Parties expressly agree that the arbitrator, and not a court, shall decide any question of whether the Parties agreed to arbitrate, including but not limited to any claim that all or part of this Agreement and/or any Insertion Order(s) is void or voidable. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision shall still be enforceable. The arbitrator(s) shall be limited to awarding compensatory damages and shall have no authority to award punitive, exemplary or similar type damages. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGES THAT ANY DISPUTE ARISING OUT OF, CONNECTED WITH, OR INCIDENTAL TO THE RELATIONSHIPS ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, WILL BE A HIGHLY COMPLEX COMMERCIAL MATTER INAPPROPRIATE FOR RESOLUTION BY A JURY. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY SUCH DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
Section XIII : General Provisions
A. ENTIRE AGREEMENT – This Agreement, together with the accepted Insertion Order(s), sets forth the entire agreement and understanding between the Publisher and Next Millennium relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, understanding, and other communications between the Parties, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Agreement or the Insertion Order(s) are included for ease of reference only and have no binding effect. Even though Next Millennium has drafted the Agreement, together with the Insertion Order(s), the Publisher represents that they had ample time to review and decide whether to agree to the Agreement and/or the Insertion Order(s). If an ambiguity or question of intent or interpretation of the Agreement and/or the Insertion Order(s) arises, no presumption or burden of proof will arise favoring or disfavoring the Parties because of the authorship of any provision of the Agreement and/or the Insertion Order(s).
B. MODIFICATIONS – No modification or amendment to the Agreement or the Insertion Order(s) shall be binding upon Next Millennium unless in a written instrument signed by a duly authorized representative of Next Millennium.
C. NO WAIVER – Notwithstanding anything to the contrary in this Agreement, the failure or delay of either Party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that Party’s right to later enforce or exercise it, unless such Party issues an express written waiver, signed by a duly authorized representative of such Party.
D. ASSIGNABILITY – Publisher may not assign the any of its rights or obligations hereunder, for any reason whatsoever. Next Millennium may freely assign this Agreement or the Insertion Order(s) without Publisher’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void.
E. SEVERABILITY – If and to the extent any provision of this Agreement or the Insertion Order(s) is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the Parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
F. FORCE MAJEURE – Neither Party shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such Party shall be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of thirty (30) days, either Party shall have the right to give to the other a 30-day notice of termination.
G. PREVAILING LANGUAGE AND LOCATION – The English language version of the Agreement and the Insertion Order(s) shall be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. Next Millennium makes no representations or warranties that the Site or the Services are appropriate or available for use in all locations. Those who access or use the Site or the Services from other jurisdictions do so at their own discretion and liability and are entirely responsible for compliance with all applicable foreign, and local laws and regulations, including, but not limited to, export and import regulations.