BeachfrontMedia, LLC (hereafter, “MeFeedia Network”, “MFN”, “we”, “us”, or “our”), having its principal offices at 5415 Lake Howell Road, No. 242 Winter Park, FL 32792, and the company entered above (hereafter “Publisher”, “you”, or “your”), (each a “Party” and together the “Parties”) hereby enter into this Publisher Agreement (this “Agreement”) as of the date entered below, with MFN providing advertising campaigns (“Ads” or “Creatives”) and/or Content which will run on the Publisher’s web sites, as well as additional services to be provided from time to time, as agreed upon by the Parties.
BEFORE USING THE MFN SERVICE, PLEASE READ CAREFULLY ALL TERMS AND CONDITIONS HEREIN. BY SUBMITTING A PUBLISHER REGISTRATION FORM OR USING THE MFN SERVICE OR MFN SDK, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND, SUBJECT TO MFN’S ACCEPTANCE OF YOUR PUBLISHER REGISTRATION FORM, AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE GUIDELINES REFERENCED BELOW. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN PLEASE DO NOT USE THE MFN SERVICE OR DOWNLOAD, INSTALL OR OTHERWISE USE THE MFN SDK IN ANY MANNER.
NOTE TO PERSONS UNDER 18 YEARS OF AGE: THE MFN SERVICE IS ONLY FOR USE BY PERSONS WHO ARE AT LEAST 18 YEARS OF AGE. Please do not use the MFN Service if you are less than 18 years old.
1. MFN Network
1.1 Membership. MFN hereby provides membership to the Publisher in MFN’s Ad network (“Membership”) subject to the terms and conditions of this Agreement. Continued Membership is subject to the ongoing approval by MFN. MFN reserves the right to refuse Membership and any service associated therewith to Publisher for any reason, in its sole discretion. MFN reserves the right, in its sole discretion and without liability, to reject, omit or exclude the Publisher for any reason from Membership or any service associated therewith, regardless of whether the Publisher was previously accepted.
1.2 Integration. Publisher acknowledges that certain aspects of Membership require the integration of advertising instructions and code (sometimes referred to as “tags”) into Publisher’s video player, advertising management system, and possibly content management system. Publisher and MFN will therefore work together in good faith to incorporate such appropriate “tags” as determined by MFN and Publisher management, and to address any other technical issues relating to the integration of MFN’s service into Publisher’s web sites.
1.3 Services. Publisher understands and agrees that from time to time the MFN ad serving services may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which MFN may undertake from time to time; or (iii) other causes beyond the control of MFN, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. While MFN will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that MFN has no control over the availability of the services on a continuous or uninterrupted basis. Publisher also understands and agrees that MFN is not responsible for the functionality of any third-party website or interface. Failure to deliver because of technical difficulties does not represent a failure to meet the delivery obligations of this Agreement.
1.4 Adherence to Publisher Terms. The Parties agree that Ads will be delivered, counted and compensated in accordance with the following Publisher Terms
1.5 Placement of Advertising. Ads shall be placed “above the fold” on Publisher’s site, such that an end user does not need to scroll down in order to see the Ad.
1.6 Preferred Formats. Publishers are asked to accommodate the following standard video ad units (at a minimum:) :15 or :30 pre-roll, 4:3 or 16:9 video size; 300×250 companion display Ad. This list is not all-inclusive, and MFN and Publisher will work together to accommodate advertiser creative requests wherever reasonable in order to achieve maximum revenue for both Parties.
1.7 Advertiser Acceptance. In the event that Publisher wishes to establish guidelines for advertiser acceptance, it will make those guidelines available to MFN up-front in order to ensure compliance.
1.8 Activity Reports. MFN will make daily reports available via a web interface at http://www.mefeedianetwork.com. Within 30 days after the end of each calendar month, MFN will make available or deliver to Publisher a report which will provide all information reasonably necessary for computation and confirmation of payments due to Publisher from MFN under this Agreement. Payments will be based upon the impression numbers which MFN records, and will be made in United States Dollars. The data in reports are subject to audit and therefore may differ from final amounts payable.
2. Modification of the Agreement. We reserve the right, at our discretion, to change, modify, add, or remove portions of this Agreement at any time, upon written notice. Your continued use of the MFN Service after notice of changes constitutes your binding acceptance of such changes. Such notice may be delivered via e-mail to the address you supplied through the Publisher Registration Form.
3. Ownership; Proprietary Rights. The MFN Service is owned and operated by Beachfront Media, LLC. The computer code, MFN SDK, documentation, content, visual interfaces, information, graphics, design, compilation, software, services, and all other elements of the MFN Service (“MFN Materials”) are protected by “Intellectual Property Rights,” which shall include (i) all right, title and interest in and to any patent, letters patent, industrial model, design patent, petty patent, patent of importation, utility model, certificate of invention, and/or other indicia of inventorship and/or invention ownership, and any application for any of the foregoing, and including any such rights granted upon any reissue, division, continuation or continuation-in-part applications now or hereafter filed, related to any such application; (ii) all right, title and interest in and to all trade secret rights arising under the common law, state law, federal law or the laws of any foreign country; (iii) all right, title and interest in and to all trademarks and service marks; (iv) all copyright rights and all other literary property and/or other rights of authorship, including without limitation moral rights; and (v) all right, title and interest in and to all know-how and show-how, in each case, existing anywhere in the world. For clarity, MFN Materials do not include advertisements or any other content owned and submitted by advertisers and/or content owners for serving and/or routing through the MFN Service. All MFN Materials, and all Intellectual Property Rights embodied therein, are the property of MFN or its subsidiaries or affiliated companies and/or third-party licensors. You agree not to sell, license, distribute copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the MFN Materials.
4. Use of MFN Service.
4.1 Publisher Registration Form. Your use of the MFN Service is conditioned upon acceptance by MFN of your Publisher Registration Form. Upon receipt of written notice of such acceptance, you may log-in to the MFN Service and use it to enable the insertion of advertisements procured by or on behalf of MFN into video content that you own or license (“Content”) on websites or online services owned or controlled by you that are specified on your Publisher Registration Form (“Sites”), subject to and in accordance with this Agreement at all times. Also, if needed upon receipt of written notice of such acceptance, you may log-in to the MFN Service and use it to enable the insertion of content procured by or on behalf of MFN into your websites or online services owned or controlled by you that are specified on your Publisher Registration Form (“Sites”), subject to and in accordance with this Agreement at all times.
4.2 Authorization. You hereby grant MFN the right to sell and have sold advertisement inventory on the Sites during the term of this Agreement, including the right to list such inventory in pitch materials to prospective advertisers and to report such inventory as being part of MFN’s advertising network to outside reporting agencies. MFN is solely responsible for, and has final authority on, decisions related on how to sell advertisement inventory, including packaging, pricing, promotional offers, and all other related deal terms. MFN reserves the right at all times, at its discretion, and without notice, to remove or refuse to distribute any advertisements or content through the MFN Service.
4.3 Implementation. You agree to implement your use of the MFN Service in accordance with the technical specifications provided by MFN, and agree that you are solely responsible for any equipment, software, telecommunications or other costs you may incur that relate to your use of the MFN Service. You may not implement use of the MFN Service on any websites or online services other than the Sites without the express prior written consent of MFN.
4.4 Cookies & Web Beacons. You acknowledge that, as part of operating the MFN Service, MFN places cookies on end user systems and uses web beacons and other technologies in order to collect and use data regarding advertisement performance and end user interests for the purpose of delivering more relevant advertising to end users across MFN’s advertising network. MFN does not collect any personally identifiable information through such cookies and beacons. You hereby grant MFN a perpetual, irrevocable, worldwide, sublicenseable right and license to use, copy, modify, distribute and otherwise exploit cookies and beacon data for MFN’s business purposes, and represent and warrant that you have all necessary end user consents necessary to grant the foregoing license. You agree that the Sites shall contain a clear and conspicuous privacy policy that (i) complies with all applicable laws, rules and regulations; (ii) discloses to users of the Sites that MFN may place and/or recognize cookies and use web beacons and other technologies in order to track the viewing and usage of Content and Advertisements and serve more relevant advertising to end users; and (iii) provides a link to http://www.mefeedia.com/privacy (or such other URL as may be specified by MFN from time to time) and a statement that users can click on such link for information on how to opt-out of the use of such technologies for the delivery of more relevant advertising. You shall comply with such other requirements that MFN may issue in writing from time to time (including through the user interface of the MFN Service) that relate to compliance with laws, rules, regulations, guidelines and industry standards relating to online advertising.
4.5Third Party Networks. You represent and warrant that you will comply with the terms and conditions (to the extent provided to you through the user interface of the MFN Service) required by any third party advertisement network (such as Google and Yahoo!) from which you may request to receive advertisements through the MFN Service.
4.6Disclaimer. MFN makes no representations or warranties of any kind regarding (i) the advertisements routed through the MFN Service, including with respect to quality, availability and timing of delivery; and (ii) the number of advertisement impressions, advertisement clicks or amount of revenue you will receive in connection with your use of the MFN Service. You are solely responsible (and assume all liability and risk) for determining whether or not any advertisements are appropriate or acceptable to you.
4.7Suspension & Modification. The MFN Service and the specific features and functionality thereof are subject to modification, suspension or termination at any time without notice. Without limiting the generality of the foregoing, MFN may suspend your use of the MFN Service at any time in the event that you are in breach of any of the terms and conditions of this Agreement.
5. Use of MFN SDK
5.1 MFN SDK. “MFN SDK” shall mean MFN’s software development kit and/or video player plug-in and/or video player that allows publishers to use the MFN Service in connection with their web sites. You agree to implement the version of the MFN SDK applicable to your use within the Sites according to MFN’s specifications.
5.2 Limited License. MFN hereby grants to you a nonexclusive, nontransferable license (without the right to sublicense) to download, install and use the MFN SDK internally for the sole purpose of using the MFN Service in connection with the Sites, in the manner enabled by MFN and in accordance with all documentation provided by MFN. You may not use the MFN SDK for any other purpose or in any other manner, including but not limited to modification, distribution, transmission or reproduction, electronically or otherwise. You may not implement the MFN SDK on any websites or online services other than the Sites without the express prior written consent of MFN.
5.3 Ownership. As between the parties, the MFN SDK provided hereunder is the property of MFN or its third party licensors. MFN shall retain all right, title and ownership interest and all Intellectual Property Rights in and to the MFN SDK and any copies, derivative works, upgrades, updates, improvements and modifications thereof, including without limitation, translations, regardless of the form or media in which, or on which, the original and any other copies, derivative works, upgrades, updates, improvements or modifications may exist. YOU SHALL HAVE NO RIGHT TO CREATE OR DISTRIBUTE, IN ANY MANNER, ANY DERIVATIVE WORK, UPGRADE, UPDATE, IMPROVEMENT OR MODIFICATION OF THE MFN SDK.
5.4 No Other Rights. No other rights or licenses are granted to the MFN SDK in this Agreement expressly, by implication, estoppel or otherwise. This Agreement is not for a sale of any interest in the Intellectual Property Rights or other proprietary interests embodied in the MFN SDK or any copy, derivative work, upgrade, update, improvement or modification thereof.
5.5 Confidentiality of MFN SDK. You agree that the MFN SDK and any documentation, information and materials related to the MFN SDK are MFN Confidential Information. You acquire no Intellectual Property Rights from MFN under this Agreement (other than the right to use the MFN SDK as stated in this Agreement).
6. Publisher Sites and Content
6.1 Responsibility for Sites. You shall be solely responsible for Sites and your content, and you acknowledge and agree that MFN has no control over, or duty, ability or obligation to monitor, your Sites or your content. You represent and warrant that you own, or have all necessary and applicable licenses, rights, consents, and permissions with respect to all Intellectual Property Rights, privacy rights, rights of publicity and other proprietary rights that are necessary to enable use of the MFN Service in connection with the Sites and your content without any violation, misappropriation, breach or infringement of any third party rights.
6.2 License Grant. You shall retain any and all of your ownership or license rights in your Sites and your Content. By using the MFN Service in connection with your Sites and your Content, you hereby grant MFN, during the term of this Agreement, a limited, worldwide, non-exclusive license to (i) serve, distribute, and insert advertisements into your Content and on your Sites and (ii) access or call to the Content or Sites, or the servers that make them available, as is necessary to cause the transmission, reproduction, and display of advertisements as contemplated herein.
6.3 Site Data. You acknowledge that MFN collects and analyzes data and information related to the use of the MFN Service with your Sites and your Content. You agree that MFN may use such data for its business purposes and share such data and information with actual or prospective advertisers and business partners in connection with operating the MFN Service. In addition, MFN may aggregate such data and information with data and information collected from other websites within MFN’s network such that your data and information is not specifically identifiable. You agree that MFN may use, disclose and commercially exploit such non-identifiable, aggregated data and information in any manner without restriction, and may transfer and sublicense such rights.
6.4 Prohibited Site and Content. You represent and warrant that you shall not use the MFN Service in connection with Sites or Content that (i) are unlawful, misleading, fraudulent, deceptive, defamatory, slanderous, libelous, threatening, sexually explicit, harassing, hateful, racially or ethnically offensive; (ii) promote piracy, hacking, discrimination, violence, gambling, alcohol, drugs, tobacco or firearms or any conduct that could be considered a criminal offense, give rise to civil liability, or violate any law, rule or regulation; (iii) infringe, misappropriate or violate the Intellectual Property Rights, privacy rights, rights of publicity or other proprietary rights of any third party; (iv) consist primarily of advertising content or are placeholders for “parked” domain names; (v) contain code that would allow a “drive-by” download, drag along technologies or technology that allows other programs or applications to be automatically installed or updated; (vi) contain or enable Trojan Horses, back-doors, hooks, viruses or similar contaminating, destructive or invasive features; (vii) interfere with or modify any aspect of end users’ system configuration, including without limitation web browser-related preferences; (viii) contain forums, discussion boards, chat rooms, or any content area that is open to public updates without regulation; (ix) that are hosted by a free hosting provider; or (x) that are of poor quality or design.
7. Prohibited Uses.
7.1 Compliance with Laws. As a condition of your use of the MFN Service, you will not use the MFN Service for any purpose that is unlawful or prohibited by this Agreement. You are responsible for complying with all applicable rules, laws, and regulations including, without limitation, applicable FTC regulations, COPPA, and laws regarding Intellectual Property Rights, the Internet, technology, data, email, and privacy.
7.2 Click Fraud. You may not, and may not authorize or encourage any third party to: (i) generate fraudulent impressions of or fraudulent clicks on any advertisements, including through repeated manual clicks, the use of robots or other automated tools or any other method that may lead to artificially high numbers of impressions, downloads, or clicks, including the offering of incentives or rewards for clicks or requests to support the Sites through clicks; (ii) edit, modify, filter, or change the order of the information contained in any advertisement, or remove, obscure or minimize any advertisement in any way; (iii) redirect an end user away from any web page accessed by an end user after clicking on any part of an advertisement (“Advertiser Page”), provide a version of the Advertiser Page different from the page an end user would access by going directly to the Advertiser Page, or intersperse any content between the advertisement and the Advertiser Page; (iv) use any automated means, including agents, robots, scripts, or spiders, to access or manage your account with the MFN Service or to monitor or copy the MFN Service or the content contained therein; or (v) display any advertisements on any error page, registration, or “thank you” page (e.g., a page that thanks a user after that user has registered with the applicable Web site). In addition, you may not click on advertisements served by MFN on the Sites in order to purchase products or services.
7.3 Unauthorized Uses. You may not use the MFN Service in any manner that in MFN’s sole discretion could damage, disable, overburden, or impair it or interfere with any other party’s use of the MFN Service. You may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the MFN Service, or features that enforce limitations on the use of the MFN Service. You may not attempt to gain unauthorized access to the MFN Service, or any part of it, other accounts, computer systems or networks connected to the MFN Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the MFN Service or any activities conducted on the MFN Service.
8. Payment
8.1 Payment Amounts. MFN will compensate Publisher fifty percent (50%) of the Net Revenue for Ads displayed on the Publisher site(s). For purposes of this Agreement, “Net Revenue” means gross revenue received by MFN from advertisements, less a deduction of 10% to cover expenses related to discounts, taxes, third party commissions, campaign referral fees, payment transaction fees, costs incurred with service providers, distributors, or resellers of the telecommunications services ordered, cost-of-money/bad-debt fees and other write-offs, currency exchange fees, and applicable ad-serving and technology fees.
8.2 Changes in Pricing Terms. MFN shall be permitted to make changes to the Pricing Terms upon 30 days notice to Publisher.
8.3 Payment Terms. Payments shall be calculated on a monthly basis, and MFN shall send payments to the payment address indicated by you in your Publisher Registration Form within sixty (60) days after the last day of the month in which MFN received the applicable Net Revenue, provided that no check will be issued for any amount less than one hundred (100) U.S. dollars. If a payment would be less than one hundred (100) U.S. dollars, such payment shall rollover to the next pay period and be paid when the total payment due exceeds one hundred (100) U.S. dollars. All payments will be made in U.S. dollars (.S.). You agree to maintain the accuracy and completeness of the payment and contact information associated with your account. Any disputes concerning payment must be contested in writing; failure to contest any payment within thirty (30) days of receipt of such payment constitutes waiver of any claim relating thereto. All decisions regarding collection of debt from Advertisers are within the sole discretion of MFN. For the avoidance of doubt all payments hereunder are based on advertisement impressions actually served by the MFN Service, and not on requests for advertisements made by the Sites. You may terminate this Agreement pursuant to paragraph 11 below if you are dissatisfied with payments you receive hereunder.
8.4 Taxes. Each party is responsible for paying any taxes, duties or fees for which it is legally responsible.
9. Account; Password. You agree that the information you provide to MFN upon registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept up-to-date at all times. When you register you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your MFN account or password. MFN is not under any obligation or duty to monitor activity under your account. Only one MFN Service account per individual or entity is permitted in the absence of express written authorization from MFN for multiple accounts.
10. Notice. Except as explicitly stated otherwise, legal notices shall be served to MFN at legal@mefeedia.com or by mail to 5415 Lake Howell Road, No. 242 Winter Park, FL 32792, Attn: Legal Department, and to you at the e-mail or postal address associated with your account. Notice shall be deemed given 24 hours after e-mail is sent or three days after the date of mailing, as applicable.
11. Termination. This Agreement shall continue in full force and effect until terminated. Either party may terminate this Agreement at any time, for any reason or for no reason, upon thirty (30) days written notice to the other party. You may effectuate termination by contacting MFN at legal@mefeedia.com. MFN may effectuate termination by sending notice via e-mail. Upon termination of this Agreement, the licenses, rights and covenants granted hereunder and the obligations imposed hereunder shall cease, except as otherwise expressly provided for herein. MFN shall not be liable to you or any third-party for any termination or suspension in accordance with the terms and conditions of this Agreement. Without limiting the generality of this Section 11, MFN may terminate this Agreement if your account does not generate sufficient revenue, as determined by MFN, for a period of three calendar months, or if MFN determines, in its sole discretion, that the Sites or Content are inappropriate. MFN shall send a final payment to cover any accrued but unpaid payments under Section 8 within 60 days of the end of the last day of the month in which termination of the Agreement is effective.
12. Confidentiality. You represent and warrant that you will not use or disclose MFN Confidential Information except as specifically set forth in this Agreement. “MFN Confidential Information” means any and all information disclosed by MFN to you that is identified as being confidential or proprietary or that relates to MFN’s current and planned products and services, software, specifications, technology and revenues. The foregoing shall not apply to any information that is or becomes publicly known through no act or omission on your part or that is required to be disclosed by law or court order. You will protect the Confidential Information by using the same degree of care, but no less than your best efforts, to prevent the unauthorized use, disclosure, dissemination or publication of the Confidential Information as you use to protect your own comparable highly sensitive confidential and proprietary information. Upon receipt of the written request (which shall include e-mail) of MFN, or at the end of the term of this Agreement, whichever occurs first, you will return or destroy all Confidential Information in any tangible or digital form, including all copies thereof whether on paper or in digital form within your possession or control. You shall not disclose the MFN SDK to any person or entity except your individual employees who have a demonstrable need to know for the purposes contemplated by this Agreement. Either party may publicize the fact that you are using the MFN Service in connection with your Site and Content. MFN may use your name and logo in sales and marketing materials, presentations, financial reports and customer lists.
13. Disclaimers; No Warranties. THE MFN SERVICE, MFN MATERIALS AND MFN SDK, AND ANY ADVERTISEMENTS, MEDIA, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MFN SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MFN, AND ITS SUPPLIERS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. MFN, AND ITS SUPPLIERS AND PARTNERS, DO NOT WARRANT THAT THE FEATURES OF THE MFN SERVICE, MFN MATERIALS OR MFN SDK WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MFN SERVICE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MFN, AND ITS SUPPLIERS AND PARTNERS, DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MFN SERVICE IN TERMS OF REVENUES, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
14. Indemnification; Hold Harmless. You agree to indemnify and hold MFN, and its affiliated companies, employees, officers and directors, and its advertisers, suppliers and partners, harmless from any claims, losses, damages, liabilities, costs and expenses (including attorney’s fees), arising out of or relating to your use or misuse of the MFN Service, violation of this Agreement, violation of the rights of any other person or entity, or any breach of the representations, warranties, and covenants contained herein. MFN reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
15. Limitation of Liability and Damages. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS HEREUNDER OR YOUR BREACH OF CONFIDENTIALITY PROVISIONS OR INFRINGEMENT OF MFN’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY (OR MFN’S THIRD PARTY PARTNERS AND SUPPLIERS) BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES THAT RELATE TO THIS AGREEMENT OR YOUR USE OF THE MFN SERVICE (WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE), INCLUDING SUCH DAMAGES THAT RESULT FROM YOUR USE OR INABILITY TO USE THE MFN SERVICE OR ANY OTHER INTERACTIONS WITH MFN, EVEN IF THE OTHER PARTY ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF MFN (OR MFN’S THIRD PARTY PARTNERS OR SUPPLIERS) TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE MFN SERVICE (WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE) EXCEED THE TOTAL AMOUNT PAID TO YOU UNDER SECTION 8 HEREUNDER DURING THE SIX MONTHS PRECEDING THE DATE THE CAUSE OF ACTION AROSE. THE PROVISIONS OF THIS SECTION 15 CONSTITUTE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
16. Miscellaneous.
16.1 Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
16.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any principles of conflicts of law.
16.3 Jurisdiction. You agree that any action at law or in equity arising out of or relating to this Agreement or the MFN Service shall be filed only in the state or federal courts in and for Volusia County, Florida and you hereby consent and submit to the exclusive personal jurisdiction and venue of such courts for the purposes of litigating any such action.
16.4 Waiver. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
16.5 Severability. If any provision of this Agreement shall be unlawful, invalid or unenforceable, then that provision shall be deleted and replaced by the valid, lawful and enforceable provision that most closely approximates the intent and economic effect of the deleted provision, and such deletion and replacement shall not affect the validity and enforceability of any remaining provisions.
16.6 Independent Contractors. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties except where it expressly does so.
16.7 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, whether by operation of law, merger, acquisition, change of control or otherwise, without the prior written consent of MFN, but may be assigned by MFN without restriction.
16.8 Survival. Sections 1-3, 4.4 (with respect to the license grant therein), 4.5, 5.3 – 5.5, 6.3, 8 (with respect to any accrued payment obligations of MFN) and 9-16 will survive any termination of this Agreement.
16.9 Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.
16.10 Entire Agreement. This Agreement is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing signed by both parties, or by a change to this Agreement made by MFN as set forth in Section 2 above.
16.11 MFN Contact Information. Email: adops@mefeedia.com, telephone: (310) 740-9255.