GRPAds Publisher Agreement
Last Modified: May 19th 2014
1. Enrollment/Modification of Agreement.
1.1 To begin the enrollment process, you must submit a complete and accurate Publisher application ("Application"). To join the GRP Network, you must be either a valid legal entity or an inpidual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the GRP Network and the Site. GRP will evaluate your Application and promptly notify you of your Application acceptance or rejection. GRP reserves the right to reject your Application for any reason at any time, in its sole discretion. If any of the information supplied as part of your Application changes, at any time, you must immediately inform GRP of same to reflect such changes in your Publisher profile. The information and services provided through the GRP Network are proprietary in nature and, by enrolling, Publisher acknowledges and warrants that Publisher is not a competitor of GRP and agrees not to share this information with any competitors of GRP.
1.2 GRP may modify any of the terms and conditions contained in this Agreement at any time, in our sole discretion; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, "Dispute Resolution Provisions") shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to payment provisions ("Payment Provisions") shall not apply to any Commissions (as defined herein below) accrued prior to the applicable amendment or modification. Such changes shall be deemed effective upon the posting of a change notice on the Site, or by posting the updated Agreement on the Site (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or Commissions accrued prior to the amendment or modification of the Payment Provisions, which shall be governed by the Dispute Resolution Provisions and/or Payment Provisions then in effect at the time of the subject dispute or accrued Commissions, as applicable). Therefore, you should regularly check the Site for any updates and/or changes. If you do not agree with any of the updates or changes, your only recourse (notwithstanding any other provision of this Agreement) is to, within 30 days of such update, terminate this Agreement and cease using the GRP Network and any active Campaigns (as defined herein below) immediately. Your continued use of the GRP Network and/or participation in any Campaign following the posting of a change notice or new Agreement on the Site will constitute your binding acceptance of the amended Agreement in its entirety, subject to the restrictions on Dispute Resolution Provisions and Payment Provisions.
2.1 "Action" includes, but is not limited to, leads, clicks, impressions, sales, applications and other consumer actions shall be defined in the Campaign Terms and shall be the basis for determining the event for which GRP shall pay Publisher the applicable commissions ("Commissions").
2.2 "Ad" means an advertisement provided by GRP on its own behalf, or on behalf of GRP's Advertisers, to Publisher pursuant to, and set forth in, any Campaign Terms(s).
2.3 "Campaign" refers to the particular parameters and terms of the advertising campaigns described in the Campaign Terms(s) and/or otherwise made available by and through the GRP Network.
2.4 "Confidential Information" means any and all information that is disclosed by one party to the other that relates to the other party's pricing and financial information, technical specifications of products, proposed release dates for products, marketing plans or strategies, distribution plans or strategies, projections, operations, sales estimates, business plans and performance results, plans for products or services, customer or supplier lists, scientific or technical information, concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, information and trade secrets, and any other information that should reasonably be recognized as confidential. Confidential Information shall not be construed under this Agreement to apply to any such information that that Publisher can show to GRP's reasonable satisfaction:
(a) has become public knowledge other than through any fault of the Publisher;
(b) was already known to Publisher;
(c) was received by Publisher from a third party who did not acquire it in confidence from Publisher or from someone owing a duty of confidence to GRP; or
(d) must be disclosed by law or by a requirement of a regulatory body or stock exchange.
2.5 "User" means a person using the Internet.
3. Sub-Publishers. For purposes of this Agreement, any business partners or associates of Publisher that participate in, or perform any activities on behalf of Publisher in connection with Publisher's participation in, the GRP Network and/or any Campaign shall be deemed to be "Sub-Publishers." Publisher must submit the names and other relevant information associated with any and all Sub-Publishers prior to using same in connection with any Campaign. Any and all Sub-Publishers must be pre-approved by GRP prior to use. Publisher shall procure the adherence of any Sub-Publishers to the terms of this Agreement GRP reserves the right to withhold or refuse approval of any Sub-Publisher for any reason whatsoever. GRP shall not be required to disclose such reason and GRP may revoke its approval of a Sub-Publisher at any time. All Sub-Publishers must meet the same criteria for approval and must comply with the same terms and conditions as required of Publisher under this Agreement. Publisher is responsible for any and all acts and/or omissions of its Sub-Publishers. Publisher shall fully and unconditionally indemnify and hold GRP harmless from and against any and all acts and/or omissions of any Sub-Publisher.
4. Campaign Terms. The Campaign Terms shall specify the following: (a) the Action for which Publisher will be paid; (b) the amount Publisher will be paid for each Action; and (c) any and all additional requirements specific to the Campaign.
5. Creative Material.
5.1 Creative Material. GRP, or its Advertisers, will provide Publisher with pre-approved creative materials (or, solely where requested in advance by GRP in writing, Publisher will create same) that are required to deliver the Ads ("Creative" and together with the Ads, the "Creative Materials"). Publisher may only use Creative Materials that have been provided by pre-approved by GRP in writing. Unless otherwise authorised in advance in writing, Publisher shall not alter, modify or otherwise make any changes to such approved Creative Materials in any manner whatsoever. The Creative Materials shall include, but are not limited to, product and/or service descriptions, graphic images, logos, and offer copy for each promotion or Campaign. The Creative Materials will be distributed by Publisher on websites owned, operated or controlled by Publisher and/or its Sub-Publishers ("Publisher Websites") or in email messages to email databases owned, operated or controlled by Publisher and/or its Sub-Publishers ("Publisher Databases") in conformance with the specifications set forth in this Agreement and in the applicable Campaign Terms. Where Creative Materials are provided by GRP’s Advertises, the GRP Advertisers are responsible for the content and compliance with all applicable rules, legislation and regulatory guidance. Where Creative Materials are provided by GRP, responsibility for the aforementioned compliance remains with GRP.
5.2 Placement. Publisher agrees that GRP may, in its sole discretion, direct the placement of Creative Materials within the Publisher Websites and/or e-mails delivered to the Publisher databases. Unless such direction is given, and subject to the terms and conditions of this Agreement, the applicable Campaign Terms and all applicable laws, rules and regulations, Publisher and its Sub-Publishers may display the Creative Materials: (a) as often and in as many areas of the Publisher Websites as they desire; and/or (b) in e-mails distributed to the Publisher Databases. Notwithstanding the foregoing, Publisher and its Sub-Publishers must comply, within twenty-four (24) hours of receipt of written notice, with any and all requests issued by GRP to modify, alter or otherwise change the positioning of, placement of, frequency of delivery and/or other editorial decisions associated with the Creative Materials. Publisher and its Sub-Publishers must remove Creative Materials within twenty-four (24) hours of receipt of written notice from GRP or upon the termination or expiration of this Agreement or any applicable Campaign.
5.3 The GRP Network contains Creative Materials and other information that is provided directly by Advertisers and/or other third parties. Such Creative Materials and other information should not necessarily be relied upon. Such Advertisers and/or other third parties are solely responsible for the accuracy, completeness, appropriateness or usefulness of such Creative Materials and other information. GRP does not represent or warrant that the Creative Materials and other information posted in the GRP Network or otherwise by and through the Site are accurate, complete or appropriate. GRP reserves the right to prohibit any conduct by Advertisers, or to remove any Creative Materials or other information, in its sole and absolute discretion. Notwithstanding the foregoing, GRP undertakes no responsibility to monitor or otherwise police the Creative Materials or other information posted by Advertisers and/or other third parties. Publisher understands and agrees that GRP will not be responsible for such Creative Materials and other information. Publisher agrees that GRP shall have no obligations and incur no liabilities to Publisher in connection with any such Creative Materials and other information appearing in the GRP Network or otherwise by and through the Site.
5.4 Tracking Codes. Unless otherwise stated in writing by GRP, each piece of Creative Material made available to Publisher in connection with any Campaign must include, in unaltered form, the GRP special tracking codes and/or pixels as embedded in all such Creative Material ("Tracking Technology"). Publisher will not knowingly modify, cloak links with the intent to defraud or deceive, circumvent, impair, disable or otherwise interfere with any Tracking Technology or other technology and/or methodology required or made available by GRP to be used in connection with the Creative Material, nor will it allow or indulge its Sub-Publishers to do same.
6. Marketing Restrictions.
6.1 Deceptive Marketing/Incentivized Marketing/Spyware. Publisher may not, nor knowingly permit any Sub-Publisher to, place the Creative Materials, as made available and pre-approved by the GRP Network, on any non-Publisher Websites without the prior express written consent of GRP. Publisher and its Sub-Publishers must place or use the Creative Materials only with the intention of delivering valid Actions. Publisher and its Sub-Publishers may not, nor knowingly permit any person to, activate the Creative Materials or inflate the amount of Actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, iFrames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an inpidual, real live person performing an Action. Publisher agrees and warrants that it shall not, nor shall it permit any Sub-Publishers to: (a) use incentivized offers, create the appearance of incentivizing offers, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Actions, or otherwise attempt to induce end-Users to click on any of the Creative Materials through use of any other incentives, without obtaining the prior written approval of GRP; (b) place any statement in close proximity to the Creative Materials requesting that e-mail recipients or Users "click" on or fill-out the applicable Creative Materials (e.g., "Please click here"); (c) place misleading statements in close proximity to the Creative Materials; (d) take control of a User's computer by delivering advertisements that the User cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (e) install or execute on another's computer one or more additional software program(s) without consent of the User (in addition, Publisher and its Sub-Publishers, as applicable, must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the User); and/or (f) distribute spyware or other similar harmful software.Publishers and Sub-Publishers must also ensure compliance with all relevant and current UK legislation, rules and regulatory guidance and/or codes, including, but without limitation, the Consumer Protection from Unfair Trading Regulations 2008, the Consumer Credit Act 1974, the Consumer Credit (Advertisements) Regulations 2010, the relevant sections of the Financial Conduct Authority Handbook, Consumer Credit Sourcebook (CONC) and the Broadcast Committee of Advertising Practice (“BCAP”) Code and Committee of Advertising Practice (“CAP”) Code. In particular, and as part of a Publisher’s and/or Sub-Publisher’s compliance with the above, Publishers and/or Sub-Publishers must ensure that all marketing material:-
i) provides clear information and clearly identifies the commercial intent (unless already apparent from the context);
ii) does not imply directly or indirectly that the affiliate is a consumer;
iii) where applicable informs consumers that the affiliate business receives remuneration from the merchant business;
iv) containing editorial content that has been paid for, makes it clear that this is the case;
v) contains accurate information that is not misleading or ambiguous.
6.2 Blogs/News Articles/Testimonials/Endorsements. Without limiting any of the marketing restrictions contained herein, without receiving GRP's prior written approval, Publisher may not, nor knowingly permit any Sub-Publisher to: (a) include or promote any Creative Materials and/or Campaigns by and through any blogs, news articles or other social media outlets without the prior written consent of GRP in each instance; or (b) use any endorsements or testimonials in connection with marketing the Creative and/or Campaigns.
6.3 Keywords/Paid Search/Paid Inclusion/PPC. Unless authorised in writing, in advance, Publisher may not, nor knowingly permit any Sub-Publisher to, use third-party trademarks or any other term excluded from the applicable "Search Terms for Use" list associated with each Campaign, in any manner to direct traffic to any Publisher Websites or Advertiser websites. This prohibition includes, but is not limited to, purchasing keywords from search engine service providers ("Paid Search Networks"), or purchasing inclusion in search engine networks ("Paid Inclusion Networks"), where the associated keywords include the trademark, service mark and/or brand name of any third party including, without limitation, an Advertiser, or any derivative or misspelling of any such trademark, service mark or brand name. Publisher must provide all text and proposed keywords/phrases that it would like to bid on ("Keyword Text") to GRP for approval or editing, prior to submitting same to any Paid Search Network or Paid Inclusion Network. Without limiting the foregoing, Publisher must not violate the rules, requirements and regulations of any Paid Search Network or Paid Inclusion Network, and Publisher shall fully indemnify and hold harmless GRP from and against any and all liability arising in connection with such a violation. Unless otherwise authorized in the Campaign Terms or by GRP in writing, in advance, Publisher may not link directly to the Advertiser website, or the landing page associated with an applicable Campaign, directly from the sponsored links and/or search results generated in connection with Paid Search Network or Paid Inclusion Network marketing.
7.1 CPA Tracking. With respect to all cost per acquisition ("CPA") campaigns, GRP will provide Publisher with daily reporting to monitor the volume of Actions it has generated as reported by the Transaction Tracking Codes.
7.2 With respect to all other Campaigns, including cost per impression ("CPM"), cost per click ("CPC") and co-registration campaigns, GRP shall have sole and absolute responsibility for calculating Actions that comply with the applicable Campaign Terms. Unless Publisher objects to GRP's count within five (5) business days of receiving the GRP count, GRP's count shall be final. If Publisher disputes GRP's count, Publisher shall send an electronic report to GRP identifying the discrepancies between GRP's count and Publisher's count within the allotted five (5) business day period. Unless Publisher can prove that the GRP count is in error, in the event of a conflict between the GRP count and the Publisher count, the GRP count shall govern.
8.2 Chargebacks. An Advertiser may request that GRP, or GRP may on its own initiative, debit Publisher's account with an amount equal to Commissions previously credited to Publisher's account, PROVIDED always that such sum so debited shall not exceed the value of actual damage incurred by GRP, in any case where: (a) a return or cancellation has been made with respect to the applicable product and/or service associated with an applicable Campaign ("Campaign Product"); (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order, lead or other similar Action; (c) there are Actions that do not comply fully with the terms of this Agreement, including where the applicable non-complying Action is not the result of Publisher's action, omission and/or failure to comply with the terms and conditions of the Agreement; (d) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Action; or (e) there is any failure on the part of Publisher to comply with the terms and conditions of this Agreement and/or the applicable Campaign Terms (collectively referred to as a "Chargeback"). Chargebacks may be applied up to six (6) months after the end of the month in which the applicable Commission was earned ("Chargeback Period"). An Advertiser may request that the payment of Commissions be postponed for one (1) payment cycle where: (i) that Advertiser is verifying a lead (for Campaigns in which lead generation is a component of the Action); (ii) that Advertiser has a product return policy that allows the customer to return the applicable Campaign Product during the Chargeback Period; or (iii) the terms and conditions of a given Campaign provide for such a postponement. Subject to Publisher's rights under clause 7.2 above, the number or amount of Actions, credits for payments and debits for Chargebacks, as calculated by GRP, shall be final and binding on Publisher. Publisher may have a negative balance where Publisher's account is debited amounts equivalent to previous Commissions payments for Chargebacks and Publisher does not have an adequate account balance to cover the Chargeback amounts. Whenever Publisher has a negative balance, Publisher must immediately remit a payment to GRP in an amount sufficient to bring Publisher's account to at least a zero balance. Publisher may make payments hereunder via PayPal¨, check or wire transfer, as determined by GRP on a case-by-case basis. When payment is made by cheque, Publisher's account will not reflect payment until the cheque has cleared and cash has been transferred to GRP's bank account. Publisher's positive account balance will not accrue interest. If Publisher has a negative balance for any period of thirty (30) days or more, Publisher's balance will be subject to interest in the amount of one and one half percent (1.5%) per month, compounded monthly.
8.3 In addition to the foregoing, where a User attempts to perform a transaction that would give rise to a compensable Action for Publisher, but such User's credit or debit card has insufficient funds to complete the applicable transaction, then Publisher shall not earn a commission in connection with that transaction even where the applicable User later completes the transaction with an alternative credit or debit card.
8.4 Taxes. Publisher shall be responsible for paying any and all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Publisher's and/or its Sub-Publishers' participation in the GRP Network. GRP may require Publisher to provide a W-9, or similar statutory tax identification information, as a condition precedent to receiving any Commission payments. Without limiting the foregoing, Publisher agrees and warrants that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by GRP and/or any of its Advertisers pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law.
8.5 Forfeiture. Without prejudice to the above provisions of this clause 8, where Publisher has materially breached the terms and conditions of this Agreement, GRP reserves the right to withhold or, where already paid out, reclaim, any and all Commissions generated by Publisher ("Forfeiture"). Without limiting the generality of the foregoing, the following actions by Publisher shall subject Publisher to Forfeiture and immediate termination of this Agreement and Publisher's participation in any and all Campaigns: (a) the use of unauthorized creative materials, websites and/or databases; (b) dissemination of unsolicited bulk e-mail, instant messages, chatroom postings, newsgroup postings, blog postings, ICQ or IRC postings or any other existing or future forms of spam or other unsolicited communication, as determined by GRP in its sole discretion (collectively, "SPAM"); (c) defrauding or violating the rules associated with any other affiliate program; (d) misrepresenting the GRP Network and/or the Site in any manner; (e) attempting to mislead or defraud GRP in any way including, but not limited to, acts of credit card or check fraud, excessive cancellations (as determined by GRP in its sole discretion), click fraud, identity theft and/or money laundering; (f) failure to use the Suppression Lists as required in Section 11.2 below; (g) selling or otherwise providing access to Publisher's GRP Network account to any third party or entity; or (h) directing traffic in connection with any Campaigns by using a misleading domain name or other means to hijack traffic.
8.6 Currency. Where the applicable Advertiser provides payment to GRP in U.S. Dollars in connection with any Actions generated in connection with a Campaign, then Publisher shall be paid in U.S. Dollars. Where the applicable Advertiser provides payment to GRP in British Pounds Sterling in connection with any Actions generated in connection with a Campaign, then Publisher shall be paid in British Pounds Sterling. Notwithstanding the foregoing, where Publisher requests in writing, in advance, GRP will convert British Pounds Sterling into U.S. Dollars and vice versa and pay Publisher in the requested currency, using the conversion rate established by GRP's financial service provider on the day of the conversion transaction between GRP and its financial service provider.
9. Confidential Information and License.
9.1 Confidential Information. Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by the applicable Campaign Terms and this Agreement and to refrain from disclosing the other party's Confidential Information to any third-party. Where any Confidential Information is to be so disclosed by the disclosing party pursuant to the requirement or request of a governmental or judicial entity, or pursuant to the operation of law, then that other party must first be given reasonable advance notice in writing by the disclosing party of any such requirement or request.
9.2 License. While this Agreement is in effect, GRP hereby grants to Publisher, a non-exclusive, revocable, non-transferable, royalty-free, limited license to the Creative Materials and other intellectual property rights owned or controlled by GRP that are specifically identified for use by GRP (including, but not limited to, copyrights, trademarks and service marks) to market the Creative Materials. The licensing of GRP intellectual property rights to Publisher shall only occur to the extent that such a license is required for performance of the services contemplated hereunder or within any applicable Campaign Terms. Without prejudice to any other rights of GRP under this Agreement, such license shall terminate immediately and automatically:
(a) upon termination of this Agreement or any applicable Campaign Terms in effect:
(b) if Publisher is in breach of any obligation or condition of this Agreement, provided that, in the case of a breach capable of remedy, it shall not have been remedied within 30 days of written notice to the Publisher specifying the breach and requiring its remedy; or
(c) if Publisher becomes insolvent, has a receiver appointed over the whole or any part of its assets, enters into a compound with its creditors, or has an order made or resolution passed for it to be wound up (otherwise than in furtherance of a scheme of amalgamation or reconstruction), or becomes subject to any procedure which is substantially similar to any of those set out above in this sub-clause.
10. Termination. Publisher may terminate this Agreement at any time for any reason with or without cause, upon two (2) business day's prior written notice to the other party. GRP may terminate this Agreement at any time for any reason with or without cause, with or without notice.
11. E-Mail Marketing Policy/Can-Spam Compliance.
11.1 Should Publisher and/or any Sub-Publishers (collectively, "Emailers") conduct e-mail marketing campaigns to its Publisher Databases, each Emailer must, upon the request of GRP, be able to produce the name, date, time and IP address of where the User's in each Publisher Database signed-up and/or gave permission to such Emailer to conduct such e-mail campaign. Emailers may NOT unlawfully misuse or infringe brand names and/or trademarks of another party (e.g., Milton Bradley or Apple) in the "subject" or "from" lines or body of any commercial e-mail transmission. Publisher is solely responsible for all User complaints relating to e-mail campaigns conducted by Emailers, and Publisher represents and warrants that it will respond to all consumer complaints within forty-eight (48) hours of notification. Each Emailer represents and warrants that, at all times, it will comply with all applicable U.S. state and federal laws, rules and Federal Trade Commission enabling regulations including, but not limited to, the CAN-SPAM Act of 2003, as amended from time to time ("CAN-SPAM"), and where applicable all relevant and current UK legislation including, but not limited to the Data Protection Act 1998, the Privacy and Electronic Communications Regulations of 2003, the Consumer Credit Act 1974, the Consumer Credit (Advertisements) Regulations 2010, Consumer Protection from Unfair Trading Regulations 2008, the relevant sections of the Financial Conduct Authority Handbook and Consumer Credit Sourcebook (CONC) and all laws of the United Kingdom governing advertising practices on the Internet (collectively, the "UK Laws"), with respect to e-mail and Internet marketing. Publisher acknowledges and warrants that any failure to comply with this Section 11 may, in the sole discretion of GRP; result in the immediate termination of this Agreement, any and all applicable Campaigns, and the forfeiture of any and all rights to any Commissions otherwise owed to Publisher by GRP. Each Emailer represents and warrants that it shall deliver commercial e-mail only to those recipients: (a) who have given such Emailer direct and/or explicit consent to receive e-mail advertising from Emailer, as defined under applicable law, and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient; or (b) with whom such Emailer has a pre-existing business relationship, as defined under applicable law, and have not unsubscribed from receiving e-mail advertising as of the date that the commercial e-mail was transmitted to such recipient. Each Emailer must: (i) refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information); (ii) not use any subject or from line that is materially false or misleading; (iii) refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial e-mail; (iv) include within all commercial e-mail sent: (1) a valid street address for both such Emailer and GRP (or the Advertiser, where applicable); (2) a clear and conspicuous identification that the e-mail message is an advertisement or solicitation; (3) a clear and conspicuous opt-out notice and functional opt-out mechanism; and (4) process unsubscribe requests within five (5) working days; (v) comply with all legal obligations with respect to unsubscribing consumers from Publisher's e-mail mailing lists; (vi) at least once each week scrub the applicable Publisher Database against the GRP suppression list; and (vii) immediately notify GRP in the event that any complaint, investigation and/or litigation ensues concerning such Emailer's marketing practices as they specifically relate to Publisher's relationship with GRP under this Agreement.
11.2 Suppression Lists. With respect to any Suppression List generated in connection with, or made available by and through the GRP Network, Emailer agrees to: (a) use such Suppression List, and the inpidual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; (b) on a weekly basis use such Suppression List to remove any and all e-mail addresses or domains contained therein from future commercial e-mail transmissions; (c) not use the Suppression List for purposes of e-mail marketing (or provide the Suppression List to any third party for said purposes) and not send, or cause to be sent, any commercial e-mail messages to an e-mail address or domain appearing on any Suppression List; (d) not use any Suppression List for purposes of e-mail appending in any manner whatsoever; (e) hold any Suppression List made available by GRP in trust and confidence; and (f) not retain a copy of any Suppression List made available by GRP following termination of this Agreement. Publisher shall provide its own list of suppressed e-mail addresses, and those gathered from its Sub-Publishers, to GRP on a bi-weekly basis. If no such e-mail addresses are supplied by Publisher, GRP may conclude that no such addresses exist. Emailer further agrees and acknowledges that: (i) it has downloaded and removed the domains located on the Federal Communications Commissions ("FCC's") wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in Campaign mailings; and (ii) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC's wireless domain names list and that the domain names contained therein will be removed before sending any Campaign mailings. Emailer shall in accordance with any applicable statute or law maintain electronic or tangible records evidencing the removal of any e-mail addresses from the Publisher Database for verification as required or requested by GRP.
12. Representations and Warranties and Liabilities.
12.2 THE CREATIVE MATERIALS, GRP NETWORK, SITE, SUPPRESSION LISTS, TRACKING TECHNOLOGY AND CAMPAIGN PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE CREATIVE MATERIALS, GRP NETWORK, SITE, SUPPRESSION LISTS, TRACKING TECHNOLOGY AND CAMPAIGN PRODUCTS MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. GRP HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY FOR PUBLISHER'S USE OF, OR INABILITY TO USE, THE CREATIVE MATERIALS, GRP NETWORK, SITE, SUPPRESSION LISTS, TRACKING TECHNOLOGY AND CAMPAIGN PRODUCTS. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, GRP IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN GRP AND PUBLISHER. THE CREATIVE MATERIALS, GRP NETWORK, SITE, SUPPRESSION LISTS, TRACKING TECHNOLOGY AND CAMPAIGN PRODUCTS WOULD NOT BE MADE AVAILABLE TO PUBLISHER WITHOUT SUCH LIMITATIONS. GRP MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE GRP NETWORK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM GRP THROUGH THE CREATIVE MATERIALS, GRP NETWORK, SITE, SUPPRESSION LISTS, TRACKING TECHNOLOGY AND CAMPAIGN PRODUCTS SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE CREATIVE MATERIALS, GRP NETWORK, SITE, SUPPRESSION LISTS, TRACKING TECHNOLOGY AND CAMPAIGN PRODUCTS IS EXPRESSLY DISCLAIMED. PUBLISHER UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE GRP NETWORK AND ACCESS AND/OR USE OF THE SITE, TRACKING TECHNOLOGY AND CREATIVE MATERIALS IS DONE SOLELY AT PUBLISHER'S OWN DISCRETION AND AT PUBLISHER'S OWN RISK. PUBLISHER IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE CREATIVE MATERIALS, GRP NETWORK, SITE, SUPPRESSION LISTS, TRACKING TECHNOLOGY AND CAMPAIGN PRODUCTS THAT MAY INFRINGE UPON A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. UNDER NO CIRCUMSTANCES SHALL GRP BE LIABLE TO PUBLISHER OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH PUBLISHER'S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM PUBLISHER'S PARTICIPATION IN THE GRP NETWORK. GRP'S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE MONEY PAID BY GRP TO PUBLISHER DURING THE PRECEDING THREE (3) MONTHS.
12.3 Without prejudice to the terms of Clause 12.2 above, all warranties, conditions and other terms implied by statute or common law (save for conditions implied such as by section 12 of the UK's Sale of Goods Act 1979 or analogous provisions) are, to the fullest extent permitted by law, excluded from this Agreement.
12.4 Nothing in this Agreement excludes or limits the liability of either party:
(a) for death or personal injury caused by the relevant party's negligence or under section 2(3) of the UK's Consumer Protection Act 1987; or
(b) for any matter which it would be illegal for the relevant party to exclude or attempt to exclude its liability; or
(c) for fraud or fraudulent misrepresentation.
13. Indemnification. Each party will defend, indemnify, and hold harmless the other party, and its respective affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses arising from any breach of any applicable Campaign Terms or of this Agreement (including any representations and warranties made herein). Publisher will defend, indemnify, and hold GRP and its respective affiliates, directors, employees, agents, successors and assigns harmless from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses arising from: (a) any allegation that Publisher has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (b) any claim related to the Publisher Website, Publisher Database and/or Publisher's marketing practices; (c) any claim related to the acts or omissions of any Sub-Publisher; and/or (e) any claim that GRP is obligated to pay any taxes in connection with Publisher's participation in the GRP Network.
14. Non-Circumvention. Publisher recognizes that GRP has proprietary relationships with the affiliates, Advertisers and other third-parties that participate in the GRP Network (collectively, "Network Partners"). Publisher agrees not to circumvent GRP's relationship with such Network Partners, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by Network Partners or GRP for any Network Partner that is known, or should reasonably be known, by Publisher to be a Network Partner, during the term of this Agreement and for the one (1) year period following termination or expiration of this Agreement. Notwithstanding the foregoing, to the extent that Publisher can show that any such Network Partner already obtained such services from, or provided such services to, Publisher prior to the date of this Agreement, then Publisher shall not be prohibited from continuing such relationship. Publisher agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that GRP shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Publisher in an amount equal to one hundred percent (100%) of the fees paid to Publisher in violation of this Section 14 for the prior six (6) month period (which sum the Parties hereby acknowledge is a reasonable pre-estimate of the likely damage that would be sustained by GRP in such event); and/or (c) any and all other remedies available to GRP at law or in equity.
15. Proprietary Rights. The organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Site, GRP Network, Creative Materials, Suppression Lists, Campaign Products and other offers, material and content made available via the GRP Network or otherwise by GRP (collectively, "GRP Content") are protected under applicable copyright, trademark and other proprietary and intellectual property rights. The usage, copying, redistribution and/or publication by Publisher of any part of the GRP Content, other than as contemplated hereunder, is strictly prohibited. Neither Publisher, nor its Sub-Publishers, acquire any ownership rights in or to the GRP Content. The availability of the GRP Content does not constitute a waiver of any rights related thereto. Publisher agrees, and shall require that its Sub-Publishers agree, that, as between the parties: (a) GRP shall be the sole and exclusive owner of all leads, consumer information and other consumer data generated in connection with any Campaigns (collectively, "Consumer Data"); (b) neither Publisher, nor its Sub-Publishers, will make any use of such Leads and Consumer Data, or supply such Leads and/or Consumer Data to any third party, except as authorized in writing by GRP; and (c) the Leads and Consumer Data shall be considered the Confidential Information of GRP.
17. General Provisions.
17.1 Dispute Resolution Provisions. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to the choice of law principles thereof. Any dispute arising out of or relating to this Agreement shall be resolved in a binding arbitration under the auspices of the American Arbitration Association in the State and County of New York in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys' fees and costs. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief in a court of competent jurisdiction. To the extent permitted by law, Publisher agrees not to bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that Publisher may have against GRP and its employees, officers, directors, members, representatives and assigns. Publisher agrees to the entry of injunctive relief to stop such a lawsuit or to remove Publisher as a participant in the suit. Publisher agrees to pay the attorney's fees and court costs that GRP incurs in seeking such relief. This provision preventing Publisher from bringing, joining or participating in class action lawsuits: (a) does not constitute a waiver of any of Publisher's rights and remedies to pursue a claim inpidually and not as a class action in binding arbitration as provided above; and (b) is an independent agreement.
17.2 Severability. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable according to its terms.
17.3 No Joint Venture. The sole relationship between the GRP and Publisher is that of independent contractors. Nothing in this Agreement is intended to or shall be construed to create a joint venture, partnership, agency, sales representative or employment relationship between the parties. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party's behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives.
17.4 Force Majeure. Either party hereto shall be excused from any delay or failure in performance hereunder, caused by reason of any occurrence or contingency beyond its reasonable control, including, without limitation, acts of God, fires, floods, wars, civil disturbances, power outages, sabotage, accidents or disputes with organized labor. The time for performance shall be extended for a period equal to the period during which the event of force majeure prevented performance as aforesaid, but in no event for more than sixty (60) calendar days. Notwithstanding any implication to the contrary herein, no event of force majeure shall extend the time for performance hereunder: (a) beyond the period during which, in the exercise of due diligence and prompt pursuit of all reasonable alternatives, the party claiming such event of force majeure could not have avoided its delaying effect, or (b) if the party claiming such event of force majeure fails to notify the other party in writing of such event of force majeure within ten (10) calendar days of its first becoming aware of such event of force majeure.
17.5 Waiver. Either party's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
17.6 Legal Warning. Any attempt by Publisher, or any other inpidual, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Site and/or GRP Network, is a violation of both criminal and civil law and GRP will diligently pursue any and all remedies in this regard against any offending inpidual or entity to the fullest extent permissible by law and in equity.
17.7 Assignment. Other than as contemplated herein with respect to its Sub-Publishers only, Publisher is not permitted to transfer any rights and obligations pursuant to this Agreement. Any attempt to do so will result in the immediate termination of this Agreement. GRP may assign this Agreement in its sole discretion. This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and GRP's successors and assigns.
17.8 Electronic Signatures. Publisher acknowledges and agrees that by clicking on the button labelled "Submit This Info Now" or such similar links as may be designated by GRP to accept this Agreement, Publisher is submitting a legally binding electronic signature and is entering into a legally binding contract. Publisher acknowledges that Publisher's electronic submissions constitute Publisher's agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, PUBLISHER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE GRP NETWORK. Further, Publisher hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.