Next Millennium Media Inc Terms and Conditions
Last Updated: 04/23/2020
These Terms and Conditions (the “T&Cs”) shall apply to any use of or participation in the Next Millennium Media, Inc., or its affiliates, divisions or subsidiaries (“we”, “us”, “our”, or “Next Millennium”), advertisement publishing services and technology services and govern the use of any online service location that posts a link to these T&Cs and any Insertion Order that references these T&Cs, and all features, registrations, content, and other services that we own, control and make available through such online service location (collectively “the Service(s)”). These T&Cs 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 agree to an Insertion Order or 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.”
These T&Cs, along with any Insertion Order, including any other attachments, exhibits, and appendices, entered into by the Parties (hereinafter collectively referred to as the “Agreement”) constitute the complete and exclusive agreement between the Parties 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 Service, 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 any other part of the Parties’ Agreement, these T&Cs shall control unless the Parties explicitly agree otherwise.
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 an Advertiser or Next Millennium 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 our Service for the purposes of having its Advertisements published on the Publisher Site(s).
“Advertiser Materials” 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.
“Commission” means the commission rate and/or structure agreed between the Publisher and Next Millennium as consideration for Next Millennium’s performance of the Services in relation to Publisher’s provision of the Publisher Site(s) to enable Next Millennium to perform such Services.
“Confidential Information” means intellectual property, trade secret information, proprietary business plans and methods, computer system architecture and network configurations, and any other information provided to, or created by, a Party 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 recipient Party; (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 the recipient Party 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 the recipient Party without use of another person’s Confidential Information.
“Fees” means the fee amount/rate/payment structure agreed between the Publisher and Next Millennium as consideration for the Services.
“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.
“Publisher” means any authorized publisher utilizing the Service 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 Content” means publisher’s intellectual property and any content, text, photographs, images, video, music, site access, materials, or other information that Publisher or a User posts to any part of the Service or provides to Next Millennium (with the exclusion of “Feedback” as defined below), 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 together with these T&Cs, and any other referenced attachments, forms the Agreement between the Parties.
“Publisher Site” means website(s) provided by the Publisher, as specified in the corresponding Insertion Order, on which Next Millennium shall run the Advertisements.
“User” shall mean Publisher’s personnel, its affiliates, and their respective employees, contractors or consultants provided that they use the Service for Publisher’s and its affiliates’ internal business purposes only and no other purpose, and Publisher is responsible for such Users’ use of the Service in accordance with the Agreement.
“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: Publisher Responsibilities
Publisher must register for a unique account to use the Services (“Account”). Publisher shall register for an Account as a Publisher, by providing all requisite information, in the prescribed form(s) available on the Service. Publisher shall not register for more than one Publisher Account without express, written permission from Next Millennium. 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 Service as a Publisher, by clicking to accept this Agreement when prompted on the Service, or by signing to accept the Publisher Insertion Order(s), the Publisher is deemed to have executed this Agreement, effective on the earliest of the dates: that the Publisher registered their Account; clicked to accept this Agreement; or accepted the Publisher Insertion Order (the “Effective Date”). 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.
Publisher acknowledges that Publisher Accounts, at the time of registration and from time to time thereafter, shall be subject to verification 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 Publisher’s ownership of their email address or financial accounts, subject to applicable law. When requested, Publisher must provide Next Millennium with information required for verification. 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.
Publisher represents and warrants that:
- the Publisher shall use the Services solely for business purposes, and not for personal, household, consumer, or criminal or fraudulent use;
- the Publisher is compliant with applicable law including any licensing or registration requirements with respect to its business, and shall continue to act in compliance with applicable law;
- the Publisher is either a legal entity or an individual 18 years or older, with the full capacity to enter into legally binding contracts and may use the Services without violating any applicable law;
- the Publisher shall be financially responsible for its use of the Services;
- any failure by Publisher to meet its obligations as specified by this Agreement, including any of its components, shall be considered a material breach by Publisher; and
- Publisher shall provide true, accurate, and complete information on its Account and all registration and other forms accessed on the Service or provided to Next Millennium, and to update the Publisher’s information to maintain its truthfulness, accuracy, and completeness. Any violation of this section is a material breach of the Agreement.
- Publisher shall add, edit, and remove ads.txt when requested via email from NMM within 48 hours.
Further, Publisher (including, without limitation, its Users) will not, and will not permit any third party to: (a) access or use the Service except as permitted hereunder; (b) use the Service as a service bureau or otherwise for the benefit of a third party; (c) rent, lease, loan or otherwise in any manner provide or distribute the Service or any copy thereof to any third party; (d) misappropriate any data or information from the Service; (e) disrupt the functioning of the Service; (f) act in a manner that interferes with Next Millennium’s operation of the Service or with the use of the Service by others; (g) gain or grant any unauthorized access to the Service; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Service or any security technology, software, or rights management information contained within the Service or in any software used to enable the Service; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Service; (j) access or use the Service to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (k) exploit the Service in any unauthorized way whatsoever, including, without limitation, by trespass or burdening server or network capacity or Service infrastructure (including, but not limited to, transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or Service infrastructure); or (l) attempt, or encourage or assist any third party to do, any of the foregoing. Publisher is responsible and liable to Next Millennium for all activity that occurs through or in connection with Publisher’s accounts, regardless of whether such is authorized by Publisher or not. This shall include any and all instructions given to or payments made to Next Millennium through Publisher’s Account. Publisher shall take reasonable precautionary measures to protect any account credentials. If Publisher becomes aware of the authorized acquisition or use of such credentials, or any authorized access to Publisher’s Account, Publisher must inform Next Millennium immediately.
Publisher shall be solely responsible for any and all acts and omissions of Publisher’s Users and for any actions taken through Publisher’ account whether authorized or not. The Publisher will require any and all Users to comply with the applicable terms of this Agreement. ANY ACTS OR OMISSIONS THROUGH PUBLISHERS ACCOUNT OR OF A USER (INCLUDING, WITHOUT LIMITATION, ANY BREACH BY A USER OF ANY TERMS OR CONDITIONS OF THIS AGREEMENT) SHALL BE DEEMED AN ACT, OMISSION, OR BREACH BY PUBLISHER AND SHALL BE ENFORCEABLE BY NEXT MILLENNIUM AGAINST THE PUBLISHER.
Section III: Provision of the Next Millennium Services
- NEXT MILLENNIUM SERVICES – Provided that the Publisher is in material compliance with this Agreement, Next Millennium shall provide the Publisher with the following Services:
- Next Millennium shall work with Advertisers and the Publisher to publish Advertisements on the Publisher Site.
- Next Millennium shall publish the Advertisements on the Publisher Site, with the intention of optimizing the Advertiser’s inventory for higher click through rate, viewability, improved user experience, and higher Advertisement revenue.
- 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.
- 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.
- 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).
B. 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 Fees, and payment terms including any Commissions. Upon receiving the Insertion Order, if the terms of such Insertion Order are acceptable to the Publisher, Publisher, or a User on Publisher’s behalf, 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 as part of this Agreement.
C. ADVERTISER MATERIALS – 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 as necessary solely for the performance and acceptance 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. 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.
D. Media Kits – 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.
E. THIRD PARTY LINKS; APPLICATIONS; AND FUNCTIONALITIES – The Service may contain links to third-party websites. The Service may also contain applications that allow the Publisher to access third-party websites via the Service. 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.
To the extent that third party services are offered through and/or incorporated into the Services (“Third Party Services”), Client acknowledges that all Third Party Services will remain the sole and exclusive property of the respective third party at issue (i.e. Google) and Publisher agrees, represents, and warrants that its use of the Third Party Services will be consistent with the terms of the applicable third party licenses and will remain the sole property of such third parties. In the event that Next Millennium needs to use or activate Third Party Services as part of the Services, including without limitation, where such activity requires the acceptance of an end user license agreement (or any similar terms whatsoever), Next Millennium may activate such Third Party Services on Publisher’s behalf. Publisher hereby authorizes Next Millennium to accept such terms on Publisher’s behalf and acknowledges that Publisher shall be bound by and adhere to such terms.
F. SERVICE 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 without such Updates. 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 the Services or any part thereof without notice and the Publisher hereby agrees Next Millennium shall not be liable to the Publisher or any third party for such.
Section IV: Commissions and Payments
A. PAYMENT TERMS
1. The payment terms, Fees, and Commissions as agreed upon by the Parties in the relevant Insert Order shall dictate the obligations of each Party.
2. 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 such is received the transaction may not subsequently be changed or reversed in any way. Next Millennium may seek clarification on publisher’s instructions as and when it deems fit in its sole discretion.
3. Publisher agrees to hold Next Millennium liable for payments solely to the extent proceeds have cleared from the Advertiser to Next Millennium in accordance with an Insertion Order. For sums not cleared to Next Millennium, Publisher agrees to hold Advertisers solely liable. Publisher understands that an Advertiser may be Next Millennium’s disclosed principal and Next Millennium, as agent, has no obligations relating to such payments, either joint or several.
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 Service, 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 withhold payment obligations 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 Fees accrued may be subject to dispute or chargeback; (c) suspects fraud or 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 Fees due to the Publisher 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 Fees 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 this Agreement, and revocation of the Publisher’s Account access to the Service.
1. In the event that the Publisher commits any other act or omission which leads to a failure on part of an Advertiser to pay any Fees due to Next Millennium, Next Millennium shall have the right to suspend or close the Publisher’s Account and revoke Publisher’s access to the Service. Notwithstanding other remedies available to Next Millennium under the law, to the extent applicable, 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. Further, 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. To the extent applicable, 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.
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 Publisher’s Account with Next Millennium as may be payable to a 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 Publisher’s Account without any liability to Next Millennium.
Section V: Relationship with Next Millennium
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, or the Publisher Content; 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 Service 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 any Insertion Order(s) and the creation of 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.
A. 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 Services. The Publisher shall only access (or attempt to access) the Services by the interface provided, and shall not use information from the Services for any purposes other than the purposes for which it was made available. The Publisher shall not to use the Services for offering any goods or services other than as specifically permitted by this Agreement and all accepted Insertion Order(s). Next Millennium and its licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to 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 Service 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.
B. PUBLISHER CONTENT LICENSE – The Publisher grants Next Millennium a limited, non-exclusive, revocable right to use and display the Publisher Content 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 Content. Upon termination of this Agreement, the Insertion Order(s), or upon Publisher’s written request, Next Millennium shall immediately return all Publisher Content to Publisher, and if requested, the Next Millennium further agrees to destroy all copies of Publisher Content 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. Any Publisher Content posted on or through the Service, whether directly by the User, through the Services, or by providing Next Millennium with Publisher Content, the User represents and warrants that it has the right, power, and authority to post the same and grant the requisite licenses specified below, and that such Publisher Content shall not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your Publisher Content may be copyrighted, the Publisher represents, warrants, and covenants that the Publisher is the owner of all the copyright rights to such Publisher Content. The Publisher shall retain all ownership rights in any Publisher Content it posts on Next Millennium. The licenses to Publisher Content granted by Publisher in this Agreement shall terminate within a commercially reasonable time after Publisher Content is removed or deleted from the Service. The Publisher may submit comments, feedback, or ideas about the Services, including without limitation feedback and suggestions about how to improve the Services and in regard to Advertisers or Advertiser Materials (collectively, “Feedback”). By submitting any Feedback, the Publisher agrees that: (a) disclosure of Feedback is voluntary, gratuitous, unsolicited, and assigned to Next Millennium without restriction and shall not place Next Millennium under any fiduciary or other obligation, (b) the Feedback do not contain the confidential or proprietary information of third parties, and (c) Next Millennium is free to use the Feedback without any additional compensation to the Publisher and to disclose the Feedback on a non-confidential basis or otherwise to anyone. The Publisher further acknowledges and agrees that, by acceptance of your submission, Next Millennium does not waive any rights to use similar or related ideas or feedback known or developed by Next Millennium or obtained from sources other than the Publisher.
Section VI: Confidentiality
1. Unless otherwise specified in the Agreement, information not generally known or available to the trade or industry 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. 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.
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. The obligation of confidentiality and limited use shall survive termination of this Agreement and continue even after the termination or expiration of this Agreement.
4. 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, and shall certify to the disclosing Party accordingly in writing with 10 days of a certification request.
Section VII : Warranties, Limitation on Liability, And Indemnities
- WARRANTY DISCLAIMER – 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 Services, Work Product, or any activities or items related to this Agreement or any 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.
- UNDER NO CIRCUMSTANCES SHALL NEXT MILLENNIUM BE LIABLE TO ANY PARTY OR PUBLISHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF NEXT MILLENNIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE RELATIONSHIP SET FORTH HEREIN.
- 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.
- LIMITATION OF LIABILITY – 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 any 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.
E. 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 or an Advertiser, 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.
F. 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 any third party against an Indemnified Party relating to: (a) Publisher’s use of the Services in breach of this Agreement; (b) the Publisher’s failure to comply with the Agreement, and/or any Insertion Order(s); (c) Publisher’s failure to comply with any applicable law(s) and/or regulation(s) (d) Publisher’s negligence, willful misconduct, or fraud; and (e) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by the Publisher or based on any of the Publisher Content, Work Product, or Publisher’s materials.
Section VIII : Suspension; Term and Termination; Survival
A. SUSPENSION; TERM AND TERMINATION
1. The Agreement come into full force and effect on the later of the Effective Date and shall remain in valid and if force for the duration of the Publisher’s use of the 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. 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 Service shall be automatically revoked, and any Account(s) 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) to the extent applicable, 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 Service if: (i) the Publisher breaches this Agreement including 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 or Advertisers; or such actions may be contrary to the interests of the Service or the Publisher community; or such actions may involve illicit or fraudulent activity. If the Publisher Account is suspended or closed, the Publisher may not use the Service 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 Service 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. In the 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.
5. Without limiting Next Millennium’s other rights or remedies, if the Publisher engages in actions or activities that circumvent the Service or otherwise reduce any amounts owed to Next Millennium under the Agreement including any Insertion Order(s), the Publisher shall pay Next Millennium, and authorize Next Millennium to charge the Publisher, 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 any Insertion Order(s) may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
6. 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 Service. 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 acknowledges that any closure of an Account may involve deletion of any content stored in such Account 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 IX : Dispute Resolution/Arbitration
A. DISPUTE VENUE; PROCESS; AND SCOPE
This Agreement and all matters arising out of or in connection with it shall be construed and enforced in accordance with, and governed by, the substantive laws of the State of New York, United States of America, without regard to the conflict of laws principles thereof. The parties hereby expressly submit to the exclusive jurisdiction of the federal and state courts located in the City, County and State of New York for resolution of all disputes arising under the terms of or in connection with this Agreement (including non-contractual claims) and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Next Millennium, in its sole discretion, shall have the right to seek a preliminary, interim or preventative injunction in respect of any breach of its Intellectual Property rights in any jurisdiction and court. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof (collectively “Dispute”), the Parties shall use their best efforts to settle the Dispute. Such efforts will include, at a minimum, that they consult, meet in person and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. If the Parties do not resolve the Dispute pursuant to the foregoing paragraph within a period of 30 days, then, upon notice by either Party to the other, the Parties agree to mediate the Dispute in good faith according to the American Arbitration Association’s Commercial Mediation Procedures in New York or another location mutually agreeable to the Parties. The Parties shall work in good faith with the mediator to attempt to complete the mediation within 30 days of such notice. If the Parties do not resolve the Dispute through mediation, then, upon written notice by either Party to the other, the Dispute shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. The arbitration shall be conducted on a confidential basis before a single arbitrator mutually agreed to by the Parties. The arbitrator shall be experienced in contract and technology law. The arbitrator shall issue a written decision or award which provides an explanation for all conclusions of law and fact. The arbitration shall be conducted in New York or another location if mutually agreeable to the Parties. An award of arbitration may be confirmed in a court of competent jurisdiction. The arbitrator may award any prevailing Party on a claim or defense some or all of its reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, out-of-pocket expenses such as copying and telephone, witness fees, and attorneys’ fees.
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 X: General Provisions
A. ENTIRE AGREEMENT – This Agreement, including its attachments and 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. 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, including its attachments and 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, including its attachments and 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 Services are appropriate or available for use in all locations. Those who access or use 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.
H. NOTICES – 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.