PUBLISHER TERMS AND CONDITIONS
The parties to this Publisher Service Agreement ("Agreement") are Pubs Arena Digital Media ("Pubs Arena") and the Publisher (the "Publisher", as defined below or "You"). Publisher may accept this Agreement by (i) taking any step to order or to request Service, or to otherwise use the Service or (ii) clicking "I agree to the terms and conditions" box at the end of this Agreement. This Agreement reflects the entire agreement between Publisher or the Affiliate and Pubs Arena. Additional terms and conditions may apply when you are using additional services made available by us and will update you about in the event it happens.
(a) Advertiser's Program or Program - an advertising program, which is made available through the Pubs Arena system, setting out the applicable advertising offer, as may be updated from time to time.
(b) Legitimate Traffic - traffic generated by the accessing of a Publisher's Website and/or network by a person who is not associated with, or related to the applicable Advertiser or the Publisher. Legitimate Traffic excludes all clicks and traffic that are artificially generated.
(c) Performance Marketing Program - is where a Publisher also means affiliate or any other person, entity, or their agents, operate a Website(s) and/or other promotional methods in order to direct traffic from such Website(s) to the Advertiser'(s') (as defined hereinafter) Website(s). The Publisher may earn financial compensation ("Payouts") for Transactions (as defined hereinafter) referred by the Publisher via an action made by a Visitor (as defined hereinafter) through an Internet connection ("Link") to a Website or Website content operated by an Advertiser ("Advertiser"). The Advertiser will compensate the Publisher, in accordance with this Agreement and the Program Payout specifications.
(d) Publisher - an affiliate, individual or entity that allows its Website or Website content and/or other traffic sources to include banners, and/or other acceptable forms or links, e-mail, click through URL's, and other accepted forms of creatives to permit Traffic and or results between the Publisher and the programs offered by Pubs Arena pursuant to this Agreement.
(e) Results - legitimate views, impressions and/or clicks including traffic that is generated by a third party on a Publisher's Website(s) and/or network, so that such third party may view Advertiser's ad creative or link to the Advertiser's Websites or is otherwise considered a purchase of Advertiser's products or services in accordance with the terms and conditions of the applicable Program, as may be updated from time to time.
(f) Tracking Code - Pubs Arena's code for tracking information.
(g) Transactions - actions by Visitors under the applicable Program.
(h) Visitor - any person or entity that is not the Publisher or the Publisher's agent.
(i) Website(s) - internet domain, or a portion of a domain.
3. USE POLICY
(a) Participation in Programs - during the term of this Agreement, the Publisher may apply to Advertiser Programs offered through Pubs Arena's network to obtain the opportunity to earn Payouts by promoting the Advertiser in accordance with the Advertiser's Program terms and in compliance with this Agreement.
(b) Transactions qualifying for a Payout are defined by the Advertiser pursuant to the rules of the applicable Program. Advertisers may change any Payout rate or cancel the Program, in whole or in part, at their sole discretion. The Publisher will be notified by email forty eight (48) hours in advance in the event of a rate change or cancellation. Publisher is responsible for monitoring Program notices. Unless expressly agreed otherwise, Program changes will enter into effect following the lapse of the said forty eight (48) hours advance notice period.
(c) Prohibited Uses of Links - The Publisher may not place Links to an Advertiser Website, or Website content in newsgroups of any third party/parties, and/or message boards, and/or blogs, and/or unsolicited email and other types of spam (all email sent must be sent in compliance with all applicable laws and regulations including the most updated CANSPAM act), and/or link farms, and/or counters, and/or chat rooms, and/or guestbooks. Publishers using any forms of chat, instant messages or similar Internet resources must designate their program as special, requiring a manual review and acceptance by Pubs Arena and the Advertiser according to the limitations in the applicable Advertiser's Program. The Publisher must promote Advertisers in a manner that does not mislead Visitors. The Publisher shall not enable any non bona fide Transactions, including, usage of any device, program, robot, Iframes, or hidden frames. Multiple leads from the same individual, entity or IP address will be considered nonbonafide transactions. Payouts are not due in connection with non-bona fide transactions.
(d) Updating Links - If links, and/or other promotional and/or marketing methods directing traffic to the Advertiser are not updated dynamically through the Marketing Service, the Publisher, on receipt of notification, is obligated to update an Advertiser's links in order to earn Payouts within forty eight (48) hours after transmission of the notification.
(e) Incentive-Based Publishers - Publisher that provides incentive-based traffic must disclose his/her/its incentive based methods to Pubs Arena as a prerequisite for signing up.
(f) Fraud - Publishers generating Traffic that is not Legitimate Traffic will be terminated without notice. Pubs Arena may withhold payment to any Publisher until clarification of Results (1) that have been produced by Publishers who have ONLY programs generating clicks with no verification by Website traffic that clearly does not sustain the clicks reported; (2) that have shown fraudulent leads as determined and proved by the Advertisers; (3) that provide justification for the click rates is not evident to the reasonable satisfaction of Pubs Arena; (4) that Publisher uses fake redirects, automated software, or fraud to generate Events from the Programs; or (5) generated results in a manner that breaches or contradicts the provisions of the Agreement or any applicable Advertiser's Program.
Pubs Arena may deny payment if the Results of the aforesaid clarification support any of the aforesaid prohibited activities. Pubs Arena further reserves the right to modify or reverse any Publisher accrued statistics and sums attributed thereto at any time, including in those instances in which the Advertiser determines the results are not Legitimate Traffic or are otherwise fraudulent.
(g) You agree to work in full transparency vis-a-vis Pubs Arena and its Advertisers and agree to provide Pubs Arena and its Advertisers with all applicable information regarding your activities, including without limitation, the promotional method You use in order to promote and direct traffic. You acknowledge and agree that Advertisers in which You participating in its Programs shall be entitled to directly approach you and require that You provide them the information set forth above regarding such Advertiser's Program.
4. PUBS ARENA'S SERVICES
(a) Tracking Transactions and Payouts - Pubs Arena shall determine, where possible, actual Payouts that should be credited to the Publisher's Account. Pubs Arena may, in its sole discretion, apply an estimated amount of Payouts, if: (i) the Publisher is referring visitors to Advertiser as verified by clicks through links to Advertiser with Pubs Arena Tracking Code, (ii) in the case of an error in Advertiser's transmission of Tracking Code data to Pubs Arena, and (iii) if Pubs Arena is able to utilize a historical analysis of the Publisher promotion of Advertiser in order to determine an equitable amount of estimated Payouts.
(b) Access to Tracking and Reporting Tools - Pubs Arena shall provide the Publisher with access to tracking and reporting tools. Tracking detail regarding Visitor Transactions may not be available on a real-time basis for all Advertisers and there may be reporting delays regarding Transactions for some Advertisers.
(c) Support is available on-line through the "Contact Us" link.
5. PUBLISHER PAYMENTS
(a) Subject to the other provisions of this Agreement, Pubs Arena shall credit the Publisher's account with a Payout for each qualifying Transaction on the basis of the Advertiser's Payout rate and the applicable Program terms. Pubs Arena shall pay any amounts due to Publisher using Pay Pal (for payment in USD only), wire or check, in accordance with any of the following methods as shall be determined by Pubs Arena as follows: (i) for Advertisers and Programs that are not incentivized Programs or other specified Programs, payments shall be made on an automatic basis in two cycles during each month with respect to all outstanding unpaid due Payouts up to the date of payment; (ii) in accordance with the applicable payment terms which apply to the Advertiser/Program You are promoting, as may be in effect from time to time ("Upon Advertiser").
(b) Notwithstanding the aforesaid, Pubs Arena reserves the right to change the Payout to Publishers according to any of the manners listed above at its sole discretion (the "Payment Change"). Except with respect to Payment Changes in cases of credit risk management which shall be effected as detailed below, any such Payment Change shall enter into effect and become contractually binding in accordance with section 16 herein. In addition, Pubs Arena may make retroactive payment changes in cases of credit risk in accordance with the discretion of Pubs Arena's financial team. In this case and notwithstanding the aforesaid, the Payment Change will be applied and deemed valid ninety (90) days backwards as of the decision of the relevant Payment Change for all qualifying transactions due to the Publisher. The Publisher acknowledges and agrees that such retroactive application is reasonable and required to protect Pubs Arena's financial interests and waives any claim or demand with respect to any retroactive payment changes applied pursuant to this section.
(c) Notwithstanding the aforesaid, Pubs Arena reserves the right to reclassify any transactions and reduce any payments due to Publisher because of any claims, demands, offsets or the like made by Advertisers for invalid events, failure to make collections, technical errors, tracking discrepancies or similar events that produce invalid results, even if the applicable Transaction was originally approved. Pubs Arena shall compile, calculate and electronically deliver to Publisher the relevant data required to determine Publisher's billing and compensation. The Publisher acknowledges that payments are based upon the Results registered and counted through the Pubs Arena Tracking Code and hereby waives any claim and/or demand towards Pubs Arena as a result of discrepancy between the Results registered through the Tracking Code and any other similar tracking system. Minimum payment using PayPal is one hundred dollars ($100.00). Minimum payment using wire transfer is five hundred dollars ($500.00). Minimum payment using check is five hundred dollars ($500.00). Processing fees will be deducted from Publisher commission balance. If Publisher does not earn the minimum amount in a month, the balance will be carried forward until such time as the minimum amount is earned or until this Agreement is terminated by either party. The Publisher acknowledges that the minimum amount may vary based upon the applicable currency being used and that the binding minimum amount shall be the amount listed in Pubs Arena's system as may be updated from time to time. Publishers are responsible for ensuring that their bank details, address and Pay Pal e-mail address are correct in their Pubs Arena account details in order to receive payment.
(d) The Publisher may select to receive payment in any of the currencies that Pubs Arena supports (as may be amended by Pubs Arena). The currency exchange rates shall be determined in accordance with the rates of the buying trade prices (Bid) and the selling trade prices that can be seen updated on XE currency rates Portal. Pubs Arena shall determine the conversion rates based upon its operating standards according to the prevailing rates at the date that payment is formed to the Publisher, or upon the basis of historical conversion rates if rates are unavailable. The number or amount of Transactions, credits for Payouts, debits for Charge-backs, and conversion costs, as calculated by Pubs Arena, shall be final and binding on the Publisher. In the event it is required to pay transactions fees, such fees shall be covered by the Publisher and deducted by Pubs Arena from each applicable.
(e) Charge-backs - an Advertiser or Pubs Arena may apply a debit to the Publisher's Account in circumstances of (i) duplicate entry or other clear error; (ii) non-bona fide transactions; (iii) non-receipt of payment from, or refund of payment to the Visitor by the Advertiser; or (iv) Publisher failure to comply with Advertiser's Program terms or other agreement with Advertiser ("Chargeback"). Charge-backs may be applied to the Publisher's account at any time, including previous payment cycles within 3 (three) months from such a Charge Back event.
6. LIMITATIONS ON USE
(a) Only individuals aged eighteen (18) years or over, partnerships comprised of such individuals, or other lawfully formed entities, may participate in this service. Publisher must provide Pubs Arena with an up-to-date, complete and accurate contact information, including name, street address, telephone number and e-mail address. Publisher is exclusively responsible for approving and updating his /her/its contact details in Pubs Arena's system. All correspondence and notices sent according to the contact details in Pubs Arena's system shall be deemed to be duly sent.
(b) As all notifications to Publisher will be sent electronically, it is the Publisher's responsibility to monitor and respond to such messages.
(c) Publisher must use its own website and identity in the sign-up process and may not assume a false or another person's or entity's identity or place Advertiser paid links on a site without authorization. Publisher must use an e-mail/password combination to access its account, and it is Publisher's responsibility to keep this information confidential. Publisher may change this information inside the member account area if necessary. Publisher is solely responsible for any and all use of its Pubs Arena account, including authorization granted to any other person or entity that may use its account.
Applicable Codes and Code Maintenance - in order to enable Pubs Arena to track and record Visitors' transactions resulting from clicks on Links to Advertisers promoted by the Publisher, the Publisher must include and maintain the Tracking Code within the Advertiser's links. All Advertiser links and advertisements ("Ad Content") must be in a Marketing Service compatible format.
(e) The Publisher shall be responsible for all usage and activity on its account and for loss, theft or unauthorized disclosure of its password (other than through Pubs Arena's negligent or willful conduct or omission). The Publisher shall provide Pubs Arena with prompt written notification of any known or suspected unauthorized use of its account or breach of the security of its account.
(f) Publisher shall be fully responsible for the acts of its agents, subcontractors and/or any other third party service providers which are engaged by it in connection with the Service. Without derogating from the aforesaid, Publisher undertakes that all such agents, subcontractors and/or any other third party service providers which are engaged by it in connection with the Service will be subject to obligations in content at least as protective as the provisions hereof.
7. PROPRIETARY RIGHTS
(a) For each Advertiser's Program for which the Publisher has been accepted, the Advertiser grants the Publisher the right to display and link to the Advertiser's website or website content in accordance with the Advertiser's Program terms and conditions for the limited purposes of promoting the
Advertiser's Program, subject to the terms and conditions of this Agreement. It is agreed between Pubs Arena and Publisher that Pubs Arena owns all rights in and to all information regarding the visitors the Publisher refers to Advertisers through Pubs Arena.
(b) The Publisher authorizes Pubs Arena to utilize the Publisher's trademarks, service marks, trade names, and/or copyrighted material that the Publisher provides to Pubs Arena through the Publisher Account in order to promote the Publisher's participation in the Marketing Services.
(d) All proprietary rights of Advertisers, the Publisher, and Pubs Arena, and all goodwill arising as a result of such rights, inure to the benefit of their owner. The Publisher acknowledges that it obtains no proprietary rights in Pubs Arena's trademarks, service marks, trade names, URLs, copyrighted material, patents, and patent applications as those shall remain the sole and exclusive property of Pubs Arena and its respective licensors.
(e) The Publisher is PROHIBITED from entering into ANY direct agreement with the Advertisers active in Pubs Arena as long as it is an active Publisher of Pubs Arena, and for a period of two years (2) after terminating its publisher account with Pubs Arena, unless the Publisher proves that it was engaged in previous business relations with the applicable Advertiser regarding the Performance Marketing Programs prior to executing an relationship with the Pubs Arena. In the event that the Publisher breaches the aforesaid non engagement obligation, Pubs Arena shall be entitled to receive up to thirty percent (30%) of the total revenues, including interest and linkage differences, that were generated by the Publisher as a result of entering into a direct agreement with any such Advertisers during a period of two (2) years after terminating the Publisher account with Pubs Arena.
(a) The Publisher or Pubs Arena may provide the other with information that is confidential and to which that party or a third party has proprietary rights, as designated by the disclosing party or that may be reasonably understood to be subject to propriety rights and/or confidential ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, and an effort no less than it uses to protect its own confidential information, to maintain the confidentiality and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure, and without breach of this Agreement or any other agreement, and without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, the Publisher must destroy or return to Pubs Arena any Confidential Information provided by Pubs Arena to the Publisher under this Agreement.
(b) The Publisher agrees that Pubs Arena may, provide its Advertisers and/or its partners and/or any other applicable third party your email address(es) and basic Publisher account details (including but not limited to the Publisher address, phone and fax number, website name, the date the website or subscription email first entered into operation, and visitor demographics) to Advertisers. Pubs Arena may provide its Advertisers and/or its partners and/or any other applicable third party any and all Visitor, Transaction and/or Tracking Code data to the Advertiser to which the Publisher referred such Visitor, and to any third party in Pubs Arena's sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement. Pubs Arena reserves the right to be able to utilize Tracking Code data provided to it, which may include information about the Publisher performance statistics, to analyze Marketing Service trends, monitor Marketing Service efficiencies, maintain the integrity of the tracking code, promote Marketing Service capabilities and efficiencies, and promote the Publisher and its Web performance to Advertisers.
9. TERM AND TERMINATION OF AGREEMENT
(a) Term - This Agreement shall commence upon the Publisher's indication that it has accepted this Agreement in providing the required information and shall remain in force until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon fifteen (15) days advance notice. Pubs Arena reserves the right to terminate this Agreement and the Publisher's right to use or receive any services or benefits including residuals relating to Service and/or Programs forthwith if the Publisher breaches any term of the Agreement, as determined by Pubs Arena. The Publisher Account may be deactivated during investigation of breach of this Agreement. If this Agreement is terminated due to a breach on the part of the Publisher, the Publisher or any of its executives shall not be eligible to enter into Agreement with Pubs Arena, and any attempt to do so shall be immediately null and void.
(b) Termination by Advertiser - An Advertiser may suspend and/or terminate its engagement with the Publisher and/or any one of the Publisher websites and/or the Publisher's ability to use a promotional method with respect to any Advertiser's Program for any or no reason, upon two (2) days written notice with effect from the 3rd day.
(c) Termination or Deactivation by Pubs Arena - Pubs Arena may terminate its engagement with the Publisher, one of the Publisher websites, and/or Publisher's use of a promotional method, with respect to any Advertiser's Program, at any time in Pubs Arena's sole discretion. Pubs Arena may temporarily deactivate or terminate the Publisher Account if: (i) the Publisher or the Publisher's agent are responsible for the improper functioning of Ad Content, or if the Publisher otherwise interferes with and/or fails to maintain the Tracking Code; (ii) the Publisher Account has not been logged into and/or there have not been any transactions credited to the Publisher Account for any thirty (30) day period; (iii) a third party (including an Pubs Arena Advertiser) disputes the Publisher's right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or goods offered on the Publisher website, or any of the Publisher's promotional means. Upon termination of this Agreement, or in case of deactivation of the Publisher's account, the Publisher shall no longer accrue Payouts, including but not limited to subsequent sales and/or leads for click-throughs that occurred prior to termination.
(d) Post-termination - Upon termination of this Agreement, except for termination due to a breach by the Publisher, any outstanding payments, based upon actual collection, shall be paid by Pubs Arena to the Publisher within the standard timeframe as mentioned in section (a). Any outstanding debit balance shall be paid by the Publisher to Pubs Arena within thirty (30) days of termination of this agreement. Provisions of this Agreement that by their nature and context are intended to survive the termination of this agreement shall survive its termination to the extent, and as long as it is necessary to preserve a party's rights under this Agreement that accrued prior to termination. All representations and warranties made by Publisher and all remedies available to Pubs Arena will survive the termination of this Agreement.
10. Publisher Representations and Warranties.
(a) Accurate, up-to-date Information. Publisher agrees to provide Pubs Arena and Advertiser with accurate information about its promotional methods, and to maintain an up-to-date information (such as contact information, websites used, etc.). Publisher undertakes to accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. Some promotional methods will be designated by the system as "special". Special Programs are linked to promotional methods and practices that are considered unique and require manual approval and acceptance by the Advertiser. Pubs Arena reserves the right to define any program as special.
(c) Promotional Methods. Publisher represents and warrants that it will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial emails, or otherwise fail to comply with any applicable laws and/ or regulations that govern email marketing and/or communications including without limitation the most updated CAN-SPAM Act of 2003. (d) Personally Identifiable Information of Visitors. Publisher represents and warrants that it will not enable the Tracking Code to collect personally identifiable information of Visitors in violation of any applicable privacy protection laws and regulations. In the event that Publisher engages in any information collection from users it must represent and warrant that such information collection is conducted in accordance with all applicable laws and regulations, including, provision of all required user notifications, obtaining any necessary consents and approvals prior to such information collection. Any provision and/or disclosure of such information to Pubs Arena, to the extent applicable, shall be made only in accordance with the foregoing.
(e) To the extent required pursuant to any applicable law and without derogating from Section 10(e) the Publisher undertakes to notify any user whose data is transferred about: (i) the identity of its data controller and of its representative, if any; (ii) the purposes of the processing for which the data is intended; (iii) the recipients or categories of recipients of the data; (iv) whether completing a form is obligatory or voluntary, as well as the possible consequences of failure to complete; (v) the existence of the right of access to and the right to rectify the data concerning such user; (vi) to whom the data will be transferred; (vii) the purposes of the transfer and that the data may be processed at various countries; (vii) that adequate level of data protection is safeguarded by contractual measures and a brief description of such measures; and (ix) the affirmative consent of the user to the transfer of such user's data.
(f) Publisher represents and warrants that: (i) it has all appropriate authority to operate, and the authority to any and all content on the Publisher's website(s); (ii) it has all appropriate authority in any promotional method the Publisher may choose to use; (iii) Publisher's website(s) and Publisher's promotional methods do not and will not infringe a third party's proprietary rights; and (iv) it shall remain solely responsible for any and all websites owned and/or operated by the Publisher and all of the Publisher's promotional methods
11. NO WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTIES, AND PUBS ARENA HEREBY DISCLAIMS ALL WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICE, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, LEGITIMACY OF TRAFFIC.
12. LIMITATION OF LIABILITY
IN NO EVENT WILL PUBS ARENA BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, THE PRODUCT OR ANY SERVICES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), OR FOR LOSS OR CORRUPTION OF DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, IRRESPECTIVE OF WHETHER PUBS ARENA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY PROVIDED IN THE PARAGRAPH DESCRIBING SERVICES PROVIDED TO ADVERTISERS, PUBS ARENA'S LIABILITY TO PUBLISHERS OR ANY THIRD PARTIES IN ANY AND ALL CIRCUMSTANCE IS LIMITED TO THE OUTSTANDING BALANCE DEPOSITED OR ACCRUED AS AN ACTIVE PUBS ARENA MEMBER MINUS TRANSACTION PAYOUTS (I.E. AMOUNTS PAID TO PUBLISHERS FOR TRAFFIC SENT TO AN ADVERTISER) AND PUBS ARENA SERVICE CHARGE(S). THIS LIMITATION OF LIABILITY IS APPLICABLE TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
Pubs Arena does not endorse or approve or make any inquiry about any products or services offered by an Advertiser or Publisher. Further, Pubs Arena does not investigate or conduct any inquiry as to the legitimacy, financial ability, actual existence or any other matter concerning any Advertiser or Publisher.
13. INDEMNIFICATION AND REMEDIES
(a) Publisher agrees to indemnify, defend, and hold harmless Pubs Arena and its Advertisers directors, officers, employees and agents from, for and against any and all liability, claims, costs, expenses, injuries, and losses, including reasonable attorneys' fees and costs arising directly or indirectly out of any disputes between the Publisher and any other party relating to this Agreement or services provided by Pubs Arena.
(b) Remedies for Violations. Pubs Arena reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including but not limited to the right to block and/or discontinue the Service.
(a) Applicability - This Agreement, including all attachments which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Applicable sections shall survive expiration or early termination of this Agreement. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Pubs Arena reserves the right to make changes to this Agreement and/or amend the Pubs Arena Service as needed, at any time, and any such change or amendment shall take effect on the date specified in the amendment and any accompanying notification. The Publisher is responsible for checking back frequently for any revisions. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement. In addition to terms that are negotiated and documented separately from this Agreement, terms that are automatically generated through the interactive use of the Pubs Arena website Advertiser interface are explicitly bound by this Agreement.(b)Notices - Except as provided elsewhere herein, both parties must send all notices relating to this Agreement in writing via overnight mail or facsimile: (i) to Pubs Arena at and, (ii) to Publisher, at the address or facsimile number listed on the Publisher Account. Notices shall be effective upon a facsimile confirmation, the notified party's actual receipt (or refusal to accept to receipt, if applicable), or five days after the date of mailing.
(c) Relationship of the Parties - Publisher and Pubs Arena are independent contractors, and nothing in this Agreement will create any joint venture, agency, franchise, sales representative, or employment relationship between the parties. Publisher has no authority to make or accept any offers or representations on behalf of Pubs Arena. Publisher will not make any statement, on its website or otherwise, that reasonably would contradict anything in this section.
15. Governing Law
If any dispute arising in connection with the performance of this Agreement shall not be amicably resolved, such dispute shall be governed by and be construed according to the laws of the State of California, without regard to the conflict of laws provisions thereto. Any dispute arising under or in relation to this Agreement shall be exclusively resolved in the competent court in the county of San Diego, California. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST LAWFUL EXTENT, ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING RELATING TO THIS AGREEMENT.
THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND PUBS ARENA DIGITAL MEDIA. BY SIGNING UP TO THE SERVICE YOU AGREE TO HAVE AN UNDERSTANDING AND BE BOUND BY ALL OF THESE TERMS AND CONDITIONS SET FORTH HEREIN. YOU CAN NOT PARTICIPATE IN THE SERVICE UNLESS YOU HAVE ACCEPTED EACH AND EVERY TERM HEREOF.