Program Terms And Conditions
These PopMonetize Inc. Terms and Conditions along with the applicable Advertiser Insertion Order (collectively, the “Agreement”) is entered into by and between the company set forth on the applicable Advertiser Insertion Order (“Advertiser”) and PopMonetize Inc, a company with registered office at Nerine Chamber, P.O. Box 905, Road Town, Tortola, British Virgin Islands (“PopMonetize”), effective as of the date the applicable Insertion Order is accepted and signed by PopMonetize (the “Effective Date”) and will govern Advertiser’s participation in the PopMonetize online advertising program (the “Program”). In consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Advertiser and PopMonetize hereby agree as follows:
1. PROGRAM DESCRIPTION
1.1 Overview. Under the Program and based on the Campaign (as defined below) information Advertiser provides, PopMonetize will serve to users connected to the internet and who have agreed to receive: (a) full page display Advertisements (as defined below) based on user search terms and URLs visited (referred to herein as “Display Advertisement(s)”), and/or (b) banner/VAST Advertisements (“Banner Advertisement(s)”).
1.2 Definitions. In addition to the terms defined within other provisions of this Agreement, the following capitalized terms shall have the meanings associated with them below.
- The term “Advertisement(s)” means advertisement(s) delivered by Advertiser that are served to users pursuant to the Program, including all content of such advertisements (whether trade names, domain names, logos, trademarks, service marks, text, graphics, audio, weblinks, URLs, or otherwise, individually and collectively, referred to herein as the “Content”).
- The term “Affiliate(s)” means parent company, parent company’s subsidiaries, principals, employees, officers, consultants, directors, members, agents, subsidiaries and affiliates.
- The term “Campaign(s)” means advertising ordering information (e.g., designation of Keyword Targets, bid amounts, banner purchases, etc.) Advertiser submits via the Program, including by way of the PopMonetize website, along with any updates and modifications to the same which Advertiser may implement from time to time during Advertiser’s participation in the Program.
- The term “Keyword Targets” means keywords, keyword phrases, search terms or URLs which Advertiser selects for Advertiser’s CPV Campaigns.
1.3 Frequency of Displays. The frequency of service of the Advertiser’s Advertisements is dependent upon (i) the terms of Advertiser’s then-current Campaign, and/or (ii) whether other advertisers have selected the same Keyword Targets, as the Advertiser has and/or have agreed to pay a higher price for displays. For example, Advertiser may not receive any clicks or impressions of Advertiser’s Advertisements with respect to a specific Keyword Target if there are other advertisers bidding more than Advertiser is bidding for that Keyword Target. Typically, the higher the bid on a Keyword Target, the greater the volume of the bidder’s Advertisements served for that Keyword Target. For the avoidance of doubt and notwithstanding the foregoing or anything to the contrary in this Agreement, Advertiser acknowledges and agrees that PopMonetize makes no promise, warranty or guarantee regarding any minimum or specific number of clicks or impressions with respect to any one or more Advertisements and/or Keyword Targets (as the case may be).
2. CAMPAIGN RULES AND RESTRICTIONS
2.1 Submission of Campaign Information. Advertiser may update Advertiser’s Campaign information at any time with prior reasonable written notification to PopMonetize. Such updates will be implemented as soon as reasonably practicable. Updates may include, without limitation, changes to Keyword Targets or changes in bids.
2.2 Campaign Responsibility. Advertiser may request the help or involvement of PopMonetize to help Advertiser select Keyword Targets, develop Advertiser’s Campaign strategy, manage Advertiser’s Campaign(s) or otherwise support Advertiser’s participation in the Program (all such services, collectively referred to herein as “Campaign Support”).
While PopMonetize shall always retain the right to review, refuse or suspend the use of the Advertiser’s contents, such contents shall remain at all timesunder the full and sole responsibility of the Advertiser. Accordingly, PopMonetize shall bear no liablity or responsibility whatsoever towards the Advertiser, the Publisher or any third party in relation to the Advertiser’s contents, whether directly or indirectly, and regardless of whether or not the contents are in compliance with this Agreement.
The Advertiser fully understands and acknowledges that it is solely responsible for the contents of the Advertisement(s).
2.3 Submission of Advertisements. Advertisements shall be submitted in accordance with the terms of this Agreement (including the updates to this Agreement as made from time to time by PopMonetize in its sole discretion). If and to the extent that a delivered Advertisement does not conform to PopMonetize’s then-current format specifications , policies and/or the terms of this Agreement (as the case may be), PopMonetize may, at its option and in its sole discretion: (i) immediately reject the Advertisement(s) and require Advertiser to submit a compliant Advertisement in substitution, or (ii) make such technical modifications as are desirable or necessary to conform the Advertisement(s) with such specifications. PopMonetize may also elect to immediately reject or suspend an Advertisement (s), in its sole discretion, if PopMonetize believes the content of the Advertisement is, or may be (a) inappropriate for whatever reason, (b) not duly authorised by the necessary third parties, (c) in violation of PopMonetize or any third party’s intellectual property rights and/or in violation of any applicable law(s), regulation, ordinance or rule, or (d) inconsistent or incompatible with the business interests of PopMonetize or its Affiliates. Neither PopMonetize nor its Affiliates shall have any liability to Advertiser or any third party including any third party claiming through Advertiser as a result of or arising out of (a) PopMonetize’s decision to reject or suspend an Advertisement, (b) PopMonetize’s decision to accept any Advertisement, or (c) PopMonetize’s transmission, delivery, posting or other distribution of such Advertisement, directly or through its Affiliates.
2.4 Labeling of Advertisements. Advertisements may be labeled by PopMonetize as an Advertisement being served via the Program. If an Advertisement is labeled by PopMonetize, Advertiser must keep the label of the Advertisement in exactly the same form and format as provided by PopMonetize and may not modify in any way, intentionally or not, in whole or in part, such label, including but not limited to, any technical workarounds.
2.5 License. Advertiser hereby grants to PopMonetize a non-exclusive, license fee-free and royalty-free, worldwide license to use, store, reproduce, distribute, create derivative works of, publicly perform, publicly display and digitally perform all of Advertiser’s Advertisements (including all Content) for purposes of performing its obligations under this Agreement and for related promotional and business purposes.
2.6 Program Reports and Data; Usage Statistics. Any data which may be collected in connection with the operation of the Program, including in connection with the implementation and operation of Advertiser’s Campaign(s), shall be and remain the sole and exclusive property of PopMonetize provided, however, that, PopMonetize hereby grants to Advertiser the right to use any Program report provided or made available to Advertiser by PopMonetize for Advertiser’s internal business purposes with the written consent of PopMonetize. In addition, at Advertiser’s request, and subject to Advertiser’s compliance with applicable security measures prescribed by PopMonetize, Advertiser will have reasonable access to usage statistics relating to Advertiser’s Advertisements, depending on PopMonetize’s internal business requirements.
2.7 Program Prohibitions. In no event is Advertiser authorized to and it shall be deemed a material breach of this Agreement if Advertiser, directly or indirectly, uses the Program in violation of this Agreement (including updates to this Agreement as made from time to time by PopMonetize in its sole discretion) or uses the Program (including any Advertisement) to:
- infringe on any third party’s copyright, patent, trademark, trade secret or other intellectual property or proprietary rights or any third party right of publicity or privacy, including but not limited to, generating unauthorized displays of Advertisements or third party advertisements, or distributing an Advertisement which includes third party content without having secured any and all rights, consents, licenses, waivers and clearances required from and the express prior documented authorization of such third party;
- generate or facilitate visits to websites that are based on fraudulent or deceptive practices, including the use of robots or other automated tools to generate unintended user requests, to open windows without a direct user click or authorization, and/or to redirect a user to a website such user did not intend to visit;
- use optimization services and/or software to fraudulently alter information regarding advertising results;
- advertise any substances, services, products or materials that are illegal or prohibited in any state or country or other jurisdiction where the Advertisement is or may be displayed;
- violate any applicable law, statute, ordinance, rule or regulation, including the laws and regulations governing (i) misleading, false or deceptive advertising, (ii) online advertising or marketing, (iii) anti-discrimination, (iv) unfair competition, or (v) export control;
- disseminate Content which (i) is defamatory or libelous or constitutes trade disparagement or libel, (ii) is lewd or obscene, (iii) consists of an adult nature or products of an adult nature, including images, videos or text portraying nudity, sexual acts, drugs, adult toys or contraceptives, unless otherwise approved in advance by PopMonetize; or (iv) promotes violence or hate speech;
- disseminate Advertisements that includes or consists of gambling, sweepstakes or similar activities, unless otherwise approved in advance by PopMonetize;
- display any download prompt or Active-X launch prompt or Active-X auto-install without requiring a direct click on Advertiser’s Advertisement by the user;
- redirect a user to another URL without a direct click by the user on Advertiser’s Advertisement;
- modify, tamper with or interfere with the operations or size of the window inside which the Advertisement is displayed in a manner that prevents the title bar and window closing controls from being visible;
- disseminate viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines that if downloaded could cause harm (intentionally or unintentionally) to a user’s computer;
- disseminate Content that has been modified in any respect from or is additional to that originally submitted to PopMonetize with the Advertisement or promote products or services different from or in addition to those initially represented or promoted by the Advertisement originally submitted to PopMonetize;
- modify, alter, hack or change in any way, intentionally or not, in whole or in part, the label of the Advertisement provided by PopMonetize as an Advertisement being served via the Program; or
- engage in practices which PopMonetize, after considering established industry standards but in its sole discretion, determines to be misleading, deceptive, unfair, damaging to PopMonetize users or business or otherwise inappropriate or unacceptable.
Advertiser acknowledges and agrees that any violation of any of the foregoing terms may result in the immediate suspension or termination of Advertiser’s participation in the Program and/or immediate termination of this Agreement by PopMonetize and may subject Advertiser to other legal consequences and damages, including direct and indirect damages under contract, equity, law, tort and otherwise.
Notwithstanding anything contained herein, PopMonetize may refuse any Advertisement that it deems, in its sole discretion, in breach of these Terms & Conditions. PopMonetize may also interrupt any Advertisement and/or Campaign, in its sole discretion and without any prior notice, that it deems in breach of these Terms & Conditions. PopMonetize shall not bear any liability whatsoever in this respect.
2.8 Representations and Warranties. Advertiser represents and warrants that:
- the information Advertiser has provided or will provide in connection with Advertiser’s participation in the Program is and will be accurate and complete and will be updated as required during the term of this Agreement in order to maintain its accuracy, currency and completeness;
- Advertiser holds and will maintain during the term of this Agreement all rights, consents, licenses, waivers, clearances, requisite approvals, permits and/or necessary filings, and all authority required to produce, deliver, and distribute the Advertisements as contemplated hereunder and to authorize PopMonetize to use, store, reproduce, display, transmit and distribute the Advertisement;
- PopMonetize’s use, storage, reproduction, display, transmission or distribution of Advertiser’s Advertisements, and any web site(s) linked to through Advertiser’s Advertisements, and products or services to which users are directed through Advertiser’s Advertisements, will not, in any state or country or other jurisdiction where the Advertisement is or may be displayed violate any applicable law, statute, regulation, rule or ordinance;
- Advertiser will not, nor will Advertiser authorize any third party to, infringe upon or misappropriate PopMonetize or its Affiliates’ intellectual property embodied within or relating to, copy, clone, reverse engineer, decompile, disassemble, or otherwise attempt to gain unauthorized access to or derive the source code of, hack, interrupt, interfere with or damage the operation of the Program, the PopMonetize website or any other website or operations of PopMonetize or its Affiliates; and
- Advertiser will not violate the “Program Prohibitions” set forth in Section 2.7 above.
2.9 Relationship Between PopMonetize and Advertiser. The relationship between Advertiser and PopMonetize is one of independent contractors and nothing contained within this Agreement or relating to Advertiser’s or PopMonetize’s performance under this Agreement shall in any way modify that relationship or be construed to make either party a partner, employee, agent or joint venturer of the other. Without limiting the foregoing, (a) neither PopMonetize nor Advertiser may make any representation or commitment or incur any obligation on behalf or in the name of the other party, and (b) Advertiser will not make any commitment to any third party which would purport to require PopMonetize to make the Program available or continue the Program or its support of any Campaign or any element of any Campaign for any minimum or fixed period of time.
3. FEES AND PAYMENT TERMS
3.1 How Advertiser is Charged. Program charges (the “Fees”) are determined by (a) how much Advertiser chooses to “bid” for Advertiser’s Advertisement to be served on the Keyword Targets Advertiser has selected for such Advertisement, and (b) how often Advertiser’s Advertisement is served. Display Advertisements are charged on a Cost Per View/Display (“CPV”) basis, or as otherwise agreed in the Insertion Order, at the rates stipulated in the Insertion Order or as amended by PopMonetize from time to time. Banner Advertisements are charged on a Cost Per Thousand Impressions (“CPM”) basis or on a revenue share basis (depending on what is stated in the applicable Insertion Order).
TheFees do not include any applicable taxes, duties or other governmental charges, all of which shall be Advertiser’s responsibility. PopMonetize may modify its fee structure, including then-current minimum bid levels, at any time, with prior notice to Advertiser which notice shall be communicated either through a posting on the PopMonetize website or via email.
Advertiser understands and agrees that all Fees will be calculated solely based upon PopMonetize records, unless as otherwise stated on the applicable Insertion Order. Unless as otherwise stated on the applicable Insertion Order, no other measurements or statistics of any kind shall be accepted by PopMonetize or have any effect under this Agreement.
3.2 Pre-Payment Funding Requirements for Display Advertisement Campaigns. Unless agreed otherwise in the Insertion Order, Advertiser will be on pre-payment terms for a Campaign, and Advertiser must maintain at any time a positive cash account balance in Advertiser’s account (“Advertiser’s Account”) in order to initiate and maintain a Campaign. Advertiser’s Account may be funded via credit card or or wire transfer. Advertiser may check Advertiser’s Account balance at any time via the PopMonetize website.
Advertiser agrees that under no circumstances will Advertiser rescind or charge back payments (and any associated taxes or other charges) made to PopMonetize via credit card.
PopMonetize shall be under no obligation to launch or continue a Campaign where the Advertiser’s account does not have a sufficient positive balance.
3.3 Net Payment Campaign Funding Requirements. If Advertiser is on net payment terms, invoices for Program charges will be due and payable based on the applicable Advertiser Insertion Order. Amounts paid after such date on the applicable Advertiser Insertion Order shall bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less). Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by PopMonetize in collecting delinquent, withheld or rescinded amounts.
4. DISCLAIMER OF ALL PROGRAM WARRANTIES
ADVERTISER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE PROGRAM, INCLUDING ALL SERVICES PROVIDED UNDER AND PRODUCTS SUPPORTING THE PROGRAM, IS PROVIDED TO ADVERTISER “AS IS” AND WITHOUT ANY WARRANTIES, AND THAT ADVERTISER’S PARTICIPATION IN THE PROGRAM IS AT ADVERTISER’S OWN RISK. WITHOUT LIMITING THE FOREGOING, ADVERTISER UNDERSTANDS AND ACKNOWLEDGES THAT POPMONETIZE AND ITS AFFILIATES: (A) EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE PROGRAM (INCLUDING ALL SERVICES PROVIDED UNDER AND PRODUCTS SUPPORTING THE SAME), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED OR ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (B) DOES NOT WARRANT OR REPRESENT THAT (I) THE PROGRAM WILL MEET ADVERTISER’S REQUIREMENTS, (II) OPERATION OF THE PROGRAM WILL BE ERROR-FREE OR UNINTERRUPTED, (III) ADVERTISER’S USE OF THE PROGRAM WILL GENERATE ANY SALES OF ADVERTISER’S PRODUCTS OR SERVICES OR THOSE OF ANY THIRD PARTY ON WHOSE BEHALF ADVERTISER MAY BE SUBMITTING ADVERTISEMENTS, OR (IV) THE PROGRAM WILL DELIVER ANY MINIMUM OR SPECIFIC NUMBER OF ADVERTISEMENTS.
5. TERMINATION OF AGREEMENT, PROGRAM, CAMPAIGN
5.1 Termination by Either Party. PopMonetize may at any time, in its sole discretion and without prior notice to Advertiser, immediately terminate the Program, this Agreement, or Advertiser’s use of any Keyword Target, Campaign or Advertisement. Advertiser may, at any time, in Advertiser’s sole discretion, terminate this Agreement and Advertiser’s participation in the Program by providing five (5) business days’ prior written notice to PopMonetize by email as set forth in Section 9.1 below. Notwithstanding the provision of notice, however, to pause account charges that may be incurred after Advertiser has provided notice of termination but prior to the effective date of termination, Advertiser must log on to its Account and follow all account charge pause procedures.
5.2 Effect of Termination on Account Balances for Display Advertisement Campaigns. If, upon termination of this Agreement, Advertiser has a positive balance in Advertiser’s Account due to prior prepayments, and if such termination resulted other than from Advertiser’s breach of this Agreement, PopMonetize shall refund to Advertiser the amount of such balance (after deducting Program fee charges and any other charges which may have been incurred prior to and through the effective date of termination),unless mutually agreed otherwise by the Parties . If this Agreement terminates as a result of Advertiser’s breach, then Advertiser shall forfeit any balance in Advertiser’s Account unless such forfeiture is waived by PopMonetize, in its sole discretion; provided, however, any such forfeiture shall not prejudice any other rights or remedies PopMonetize may have available to it as a result of such breach.
5.3 Other Consequences of Termination. Neither party shall have any liability to the other or to any third party as a result of its decision to exercise or waive its rights under Section 5.2 above (if applicable); provided however, that any termination of this Agreement, the Program, a Campaign or any element of a Campaign shall not affect either party’s rights or obligations (including payment obligations) under this Agreement to the extent such rights or obligations incurred or accrued prior to the effective date of termination. In addition, those provisions which by their nature would be understood to survive any termination shall be deemed to survive, including those provisions governing ownership rights, payment obligations, limitation of liability, releases, disclaimers, indemnification, ownership, confidentiality, assignment, governing law and venue, and integration.
6. LIMITATION OF LIABILITY
6.1 Limitation of Liability. IN NO EVENT WILL POPMONETIZE OR ITS AFFILIATES BE LIABLE TO ADVERTISER OR TO ANY THIRD PARTY (WHETHER OR NOT CLAIMING BY OR THROUGH ADVERTISER) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, REVENUES, GOOD WILL, REPUTATION, PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ADVERTISER’S USE OR THE PERFORMANCE OF THE PROGRAM, WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED ON LAW, EQUITY, CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT POPMONETIZE OR ITS AFFILIATES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. POPMONETIZE’S AND ITS AFFILIATES’ CUMULATIVE LIABILITY TO ADVERTISER AND ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND BASED ON ANY THEORY OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AGGREGATE AMOUNT OF UNITED STATES DOLLARS TEN THOUSAND (US$ 10,000) FOR THE DURATION OF THIS AGREEMENT.
6.2 Force Majeure. Neither party shall incur any liability hereunder as a result of a failure or delay in such party’s performance (other than in the performance of its payment obligations) to the extent such failure or delay results from any condition or occurrence beyond the reasonable control of such party, such as, without limitation, from interruptions in the electrical supply, failure of the Internet, terrorism, cyber attack, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, In the event of any such failure or delay on the part of PopMonetize, Pop Monetize’s sole and exclusive obligation and Advertiser’s sole and exclusive remedy shall be for PopMonetize to, in its discretion and at its sole election, (a) to restore service as soon as reasonably practicable, or (b) terminate this Agreement upon written notice to Advertiser.
6.3 Additional Releases. In no event will PopMonetize or its Affiliates be liable for, and Advertiser hereby releases each from any claim by Advertiser and/or any third party arising out of or in connection with (a) the lack of success of any Campaign, (b) the failure of any Campaign or any Advertisement to achieve any minimum or fixed number of clicks or impressions with respect to any one or more Advertisements and/or Keyword Targets in any particular context or at any particular time, (c) PopMonetize’s implementation of a campaign on behalf of any third party which is or may be at any time competitive with a Campaign established by Advertiser, and (d) any Campaign Support provided (or not provided) by PopMonetize.
Advertiser agrees to indemnify, defend and hold PopMonetize and its Affiliates harmless from and against any and all liability, loss, damages, claims or causes of action, including internal and external legal fees and expenses, arising out of, related to or which may arise from (a) Advertiser’s use of the Program, (b) Advertiser’s Advertisements and any material to which users can link through an Advertisement, (c) Advertiser’s selection and use of Keyword Targets (if applicable), and/or (d) Advertiser’s breach of any term (including any warranty or representation) of this Agreement. If any claim or action is brought against PopMonetize or its Affiliates for which indemnity may be sought pursuant to this Section 7, PopMonetize or its Affiliates shall be entitled to participate at their own expense in the defense of such claim, and no settlement may be entered into by Advertiser without PopMonetize’s or its Affiliates’ prior written consent.
8. OWNERSHIP, CONFIDENTIALITY AND PRIVACY
8.1 Ownership; No Transfer of Title. Nothing in this Agreement shall be construed as transferring any intellectual property rights or ownership interests from PopMonetize to Advertiser. Without limiting the foregoing, all ownership of and all right, title and interest including all copyrights and all other intellectual property rights in and relating to the Program, websites, services, design and formatting specifications and any content embodied by or set forth in the same shall be and remain exclusively with PopMonetize or its Affiliates. PopMonetize and its Affiliates reserve all rights not expressly granted hereunder.
8.2 Confidential Information. Each party agrees that all non-public business, marketing, technical (including software code and algorithms), operational, vendor, marketing (including pricing, Keyword Target performance statistics, and competitive information), employee, customer, and financial information they obtain from the other, are the confidential property of the disclosing party (“Confidential Information”). The receiving party shall protect the Confidential Information with the same degree of care as it would with its own Confidential Information, but in no event with less than reasonable care. The receiving party shall not disclose Confidential Information to the receiving party’s employees, agents, consultants, subsidiaries, corporate affiliates or any other third parties, except when disclosure is necessary to perform the obligations under this Agreement, provided that any such recipient shall be under the same obligations of confidentiality as that of the receiving party and shall be contractually bound to protect the Confidential Information consistent with the terms of this Agreement. The receiving party shall not be obligated under this Section 8.2 with respect to information the receiving party can document (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents, (ii) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information, (iii) is legally required to be disclosed in filings with the Securities and Exchange Commission, or (iv) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party. The receiving party may make disclosures required by law or court order provided the receiving party uses reasonable efforts to notify the other party in writing as promptly as practicable (and, if possible, prior to making the disclosure) in order to permit the disclosing party to limit disclosure and to obtain confidential treatment of the information.
9. MISCELLANEOUS TERMS AND CONDITIONS
9.3 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of Hong Kong.
9.4 Public Announcements. Advertiser agrees not to, at any time before, during or after the term of this Agreement, issue any press releases or other public statements concerning the existence, subject matter, terms or performance of any Campaign or this Agreement without PopMonetize’s prior written approval.
9.5 Entire Agreement. This Agreement (a) represents the entire understanding between Advertiser and PopMonetize with respect to Advertiser’s participation in the Program, (b) supersedes all prior and contemporaneous agreements, express or implied, oral or written, relating to the subject matter hereof, and (c) may not be modified or amended other than by written agreement of the parties. For the avoidance of doubt, the parties agree that no terms in any form purchase order or other document which Advertiser may deliver, whether or not signed by PopMonetize, shall be deemed to modify or amend the terms of this Agreement and any such additional or inconsistent terms shall automatically be deemed unacceptable to and rejected by both parties, and as such, null and void and of no force and effect. Likewise with respect to the matters covered herein, the parties agree that this Agreement shall (i) govern and control and shall not be deemed to be modified by any inconsistent or conflicting terms set forth on the PopMonetize website (except for updates to this Agreement as described in Section 2.3), and (ii) supersede any click-through agreement on Advertiser’s or its Affiliate’s website, including but not limited to for the purpose of registering an account to access reporting and other usage information, whether or not any such click-through agreement is ‘accepted’ by PopMonetize before, on or after the Effective Date. The word “including” or its variants shall be construed non-exclusively to mean “including but not limited to.” Headings are for organizational purposes only and should not be considered in the substantive construction of the terms of this Agreement. Any waiver of rights, to be enforceable, must be in writing and signed by the party against whom such waiver is to be enforced, and shall be limited to the specific circumstances giving rise to and expressly addressed by such written waiver. If any portion of this Agreement is held invalid, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement.
9.6 No Assignment. Advertiser may not assign or transfer this Agreement or any obligation incurred hereunder, without the prior written consent of PopMonetize. Any attempt to do so without such consent shall be null and void and of no force and effect.
9.7 Waiver. No failure on the part of PopMonetize to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies (whether provided by law or otherwise).