This Advertising Agreement (“Agreement”) is made as of the date of registration as a LITT Business Partner by the ADVERTISER (“Effective Date”) by and between LITT Global Pty Ltd (“Company”) and the ADVERTISER (“Advertiser”).
RECITALS
The Company operates an online social media and augmented reality platform and software application (the “App”) that allows Members to: (i) create individual, customized accounts; (ii) post Content to the App for other Members to view; (iii) “like” and comment on other users’ Content on the App; (iv) send messages to other Members; (v) earn LITT Points for watching advertisements or other specified Content on the App and convert earned LITT Points into LITT Cash; (vi) redeem LITT Cash for goods and services from participating third-party vendors on the App and in person; (vii) purchase, send, and use gift vouchers from participating third-party vendors; and (viii) interact with an augmented reality system.
The Company has agreed to host Advertisements, on the App, in connection with Advertiser’s goods or services, in exchange for which the Advertiser has agreed to pay the Advertising Fee.
The parties wish to enter into this Agreement to record the terms and conditions on which the Company will host the Advertisements.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows:
1. DEFINITIONS
For the purposes of this Agreement:
– Advertisement means the Content hosted on the App to promote Advertiser’s goods or services from time to time.
– Advertising Fee means the advertising fee set out in Item 3 of the Schedule.
– App means the proprietary software mobile application (in iOS and Android formats) and the LITT business web application developed by or on behalf of, and owned by, the Company, together with all adaptations, modifications, amendments, extensions, revisions, updates, upgrades, and other changes thereto.
– Business Day means a day other than a Saturday, Sunday, or federal holiday in the United States.
– Claim means any claim in law or equity, or under statute, for a remedy of any nature whatsoever, whether contingent, prospective, actual or otherwise (but does not include claims based on events which occur in the future) and including any and all claims, actions, sums of money, arbitrations, suits, counterclaims, demands, causes of action, debts due, verdicts, judgments, damages, losses, account reckonings, proceedings, charges, costs (whether on an indemnity or party/party basis) and expenses.
– Company’s Account means the bank account specified in the registration details provided by the Advertiser in the App
– Confidential Information means:
1. Any information disclosed, directly or indirectly, by one party to another party before, on or after the Commencement Date under or in connection with matters which are the subject of this Agreement, including information that is designated as “confidential” or in some other manner to indicate its confidential nature or any Intellectual Property Rights; and
All or any of the following as it relates to the Company or the App generally:
a technical, financial, operational, legal and other information, including any Intellectual Property Rights, systems, technology, ideas, concepts, know-how, techniques, specifications, blueprints, tracings, diagrams, models, functions, capabilities and designs (including computer software, manufacturing processes or other information embodied in drawings or specifications);
b information derived or produced partly or wholly from any information the subject of (a) above, including any calculation, conclusion, summary or computer modelling;
c trade secrets or information which is capable of protection at law or in equity as confidential information; and
d any information and Intellectual Property Rights owned by the Company or that are concerned with or connected to the display of Advertisements on the App.
– Content means any text, graphics, images, music, software, audio, video, information or other materials in digital form or otherwise.
– Effective Date means the date on which this Agreement is signed by the last party to do so.
– Insolvency Event means that, for a party to the Agreement,:
an order is made or an effective resolution is passed or legislation is enacted for its dissolution, liquidation or winding up;
it becomes insolvent or makes an assignment for the benefit of its creditors or is unable to pay its debts as the same become due;
a receiver is appointed and takes possession of the whole or a material part of its assets or undertaking and the receiver is not removed or does not withdraw within two weeks of his appointment or taking possession of those assets;
the party takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation or an administrator is appointed to the party; or
the occurrence of any event in relation to a party which leads to the party becoming unable to pay its debts as and when they fall due.
– Intellectual Property Rights means any intellectual or industrial property rights (anywhere in the world, whether at a statutory level, at common law or otherwise and whether registered or unregistered), including inventions, patents, patent applications, patent disclosures, utility models, copyright (including future copyright), trademarks, logos, design marks, service marks, systems, trade names, business names, brand names, designs, source code, know how, trade secrets, domain names, internet addresses, semiconductor or circuit layout rights, and including all applications and rights to apply for registration of those intellectual property rights, and any and all registrations, renewals, revisions, extensions, re‑examinations, translations, adaptations, derivations and combinations, copies and prototypes, tangible embodiments or manifestations of those items.
– Law means any act, statute, regulation, standard, code or by-law or other law which may be applicable in the United States of America.
– LITT Cash means virtual units that a Member can accrue through various means on the App, including by viewing an advertisement (including any Advertisements).
– LITT Wallet means a virtual wallet that is personal to a Member and attaches to a Member’s registered account on the App.
– Proposed Advertisement has the meaning given in Section 4.1.
– Representative means a director, officer, employee, contractor, adviser (financial or legal), or agent.
– Schedule means the schedule attached to this Agreement.
– Special Conditions refer to the special conditions set out in Item 5 of the Schedule.
– Term means the term of this Agreement as set out in Item 2 of the Schedule.
– Member means a person who has registered an account as a user on the App.
2. TERM
2.1 This Agreement commences on the Effective Date and continues for the Term set forth in the Schedule, subject to early termination per the terms of Section 17 herein.
The parties may extend the Term at any time by written agreement between them.
3. CONTENT OF ADVERTISEMENTS
Advertiser acknowledges and agrees that Advertisements must not contain:
3.1 violence or depictions of violence (including graphical or animated violence)
3.2 threatening or bullying, or pictures that have the effect of teasing or bullying someone else
3.3 content in violation of any Law relating to the advertisement of gambling, alcohol, drugs or tobacco;
3.4 sexual violence, depictions of sexual violence, or graphical or animated sexual violence;
3.5 nudity or partial nudity, whether or not Advertiser has permission from the person or persons pictured;
3.6 signs, gestures or actions (including signs, gestures or actions which are depicted through emoticons, videos, sounds, or animated “GIFs”) that are discriminatory, racially vilifying, intimidating, inciteful, hateful, vulgar, obscene, pornographic or sexually suggestive;
3.7 profanity, abusive or aggressive language, whether in English or in any other language;
3.8 personal details, including full names, addresses, phone numbers or email addresses, whether the personal details belong to Advertiser or another party;
3.9 confidential information of any other person, such as credit card details or account information, whether the confidential information belongs to Advertiser or another party;
3.10 misleading or deceptive content, or content which is likely to mislead or deceive; or
3.11 any website links or URLs that show content which would contravene this Agreement if posted on the App.
4. APPROVAL OF ADVERTISEMENTS
4.1 From time to time during the Term, at Advertiser’s discretion, details for an advertisement that Advertisers intends to have placed on the App (“Proposed Advertisement”) may be submitted by Advertiser to Company for review and approval. Submission of a Proposed Advertisement to Company does not constitute a commitment, obligation, or guarantee by Company to publish or distribute the Advertisement. Advertiser will be notified if and when a Proposed Advertisement has been approved and accepted by Company.
4.2 Advertiser acknowledges and agrees that, despite Company’s approval, a Proposed Advertisement will not be placed or hosted on the App until the associated Advertising Fee has been paid in full.
4.3 All Advertisements are subject to Company’s approval. Advertiser acknowledges that Company reserves the right to reject, or decline to publish, any Proposed Advertisement that Company, in its sole and absolute discretion, for any reason whatsoever, including, but not limited to, belief by Company that any placement of the Proposed Advertisement may violate any Law or subject Company to criminal or civil liability. In such a case, Company may provide Advertiser a written explanation of its decision and the basis therefore, and Advertiser may be given a reasonable opportunity to rectify the identified issues.
4.4 If Company rejects a Proposed Advertisement and Advertiser is unable or unwilling to cure any issues specified by Company, then Advertiser’s request for placement and hosting of the Proposed Advertisement will be deemed withdrawn and Section 17 of this Agreement will apply.
4.5 Advertisers are solely responsible for the accuracy, substance, and legality of Advertisements and Content contained therein. Company will not be liable for Advertisements or Content submitted by Advertiser, and will be entitled, in its sole discretion, to edit or remove Advertisements or Content that Company reasonably believes to be inaccurate, inappropriate, or otherwise not in compliance with this Agreement or applicable law. NOTHING IN THIS AGREEMENT OBLIGATES COMPANY TO DISPLAY ANY ADVERTISEMENTS OR CONTENT THAT COMPANY REASONABLY BELIEVES TO BE INACCURATE, INAPPROPRIATE, OR OTHERWISE NOT IN COMPLIANCE WITH THIS AGREEMENT OR APPLICABLE LAW, OR TO USE SUCH ADVERTISEMENTS OR CONTENT AT ALL OR IN A CERTAIN MANNER.
5. ADVERTISING FEE
5.1 In consideration for the Company’s placing, hosting, and operating a specific Advertisement on the App, the Advertising Fee will be paid by Advertiser to Company, as set forth in the Schedule or displayed on the advertising module on the App.
5.2 The Advertising Fee may be amended from time to time by written agreement of the parties.
5.3 The Advertising Fee must be paid before an Advertisement will be placed and hosted on the App. Payment of the Advertising Fee should be paid via credit card at the time when a Proposed Advertisement is submitted to Company for approval, unless otherwise agreed upon by the parties.
5.4 The Advertising Fee will not be refunded to Advertiser in the event that this Agreement is terminated by either party before expiration of the Term.
6. APP METRICS
6.1 Advertiser will have access to analytics, performance metrics, and transactional information concerning Advertisements through Advertiser’s account on the App. Should Advertiser wish to obtain additional details or information regarding the performance of an Advertisement, Advertiser may submit, to Company, a written request for the same and Company may, but is not obligated to, supply such additional information.
6.2 In connection with any and all tracking services, the parties acknowledge and agree that the protection of consumer privacy is a priority of both Company and Advertiser. Each party pledges its commitment to protecting the privacy of consumers, taking all commercially practicable steps to maintain such privacy, and adhering to fair information collection practices with respect to each of its performances and obligations under this Agreement. Accordingly, each party represents and warrants that it will act in full compliance with all Federal Trade Commission guidelines and any other applicable laws, rules and regulations then in existence with respect to the collection, use, and sharing of information gathered from consumers.
7. NON-EXCLUSIVITY
Advertiser agrees and acknowledges that, before, during and after the Term, the Company may: (a) host other advertisements on the App generally; and (b) host advertisements from businesses that are in the same industry as Advertiser or offer similar goods or services as Advertiser (or any partner of the Advertiser).
8. REPRESENTATIONS AND WARRANTIES
8.1 To the extent applicable, Advertiser represents and warrants as follows:
a. Advertiser is duly organized and validly existing under the laws of its place of incorporation;
b. An Insolvency Event has not occurred in relation to Advertiser;
c. The execution and delivery of this Agreement by it has been properly authorized by all necessary corporate action;
d. Advertiser has the full power and lawful authority to execute and deliver this Agreement and to consummate and perform or cause to be performed its obligations hereunder;
8.2 This Agreement constitutes a fair, legal, valid, and binding obligation upon Advertiser, enforceable in accordance with its terms by appropriate legal remedy, and Advertiser enters into the same voluntarily, without duress or inducement by any promise, representation, improper pressure, coercion or undue influence;
8.3 Advertiser has had adequate opportunity to negotiate the terms of this Agreement, as well as obtain independent and competent legal or other professional advice concerning the effect thereof, and understand the legal significance and effect of entering into this Agreement;
8.4 Advertiser has given all notices and obtained all rights, consents, assignments, licenses, permissions, and authorizations (including the waiver of any moral rights) necessary for Advertiser to transmit the Advertisement, and any Content therein, to Company and for Company to collect, use, and share the Advertisement (and any Content contained therein), as contemplated by this Agreement, such that any transmission, placement, use, hosting, and sharing of the Advertisement will not violate or infringe (1) any Laws, (2) intellectual property, publicity, privacy, or other rights; or (3) any terms of use or other policies or agreements governing Advertisements, Content, or Advertisers’ activities relating to use of the App;
8.5 All statements and direct and indirect claims made in each Advertisement are accurate, not defamatory, and true and supported by competent and reliable substantiation;
8.6 Neither Advertiser, nor its subsidiaries, nor any director or officer thereof, is, or is owned or controlled by individuals or entities that are: (1) the target of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Asset Control or the U.S. State Department, the United Nations Security Council, the European Union or Her Majesty’s Treasury (collectively, “Sanctions”), or (2) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions;
8.7 All of Advertiser’s Advertisements or other Content will comply with Company’s privacy policy, the California Online Privacy Protection Act, the Children’s Online Privacy Protection Act, and the Self-Regulatory Principles for Online Behavioral Advertising at https://www.aboutads.info/obaprinciples;
8.8 Advertiser will provide Proposed Advertisements and Advertisements (1) in a prompt, proper and professional manner, with the level of skill, care and diligence to a standard equivalent to the standards and performance exhibited by a person performing services similar to Advertiser; (2) that do not include false, deceptive or materially misleading claims, reviews, or endorsements. Advertiser agrees to comply with the FTC Act, the Uniform Deceptive Trade Practices Act, and any state deceptive advertising and business practices laws that may be applicable to Advertiser’s business or Advertisements.
8.9 Advertiser is aware Company is relying on the representations and warranties in this Section 8 in choosing to enter into this Agreement.
8.10 The provisions of this section will survive the termination of this Agreement.
9. DISCLAIMERS, LIMITATION OF LIABILITY, INDEMNITY
9.1. The terms in this Section 9 are applicable to Company, its officers, employees, directors, shareholders, affiliates, agents, and licensors (collectively, the “Covered Parties”).
9.2. Advertiser understands and agrees that in no event will the Covered Parties be liable under any theory of liability (whether in contract, tort, statutory, or otherwise) for any incidental, special, exemplary, punitive, consequential, or indirect damages (including damages for deletion, corruption, loss of data, loss of programs, failure to store any information or other content maintained or transmitted by the App, service interruptions, or for the cost of procurement of substitute services) arising out of or in connection with the App or this Agreement, however arising (including negligence), even if Company or its agents or representatives know or have been advised of the possibility of such damages.
9.3. In no event will Company’s aggregate liability to Advertiser for all Claims relating to the App or this Agreement exceed the amount, if any, paid by Advertiser in connection with this Agreement.
9.4. The limitation of liability provisions set forth in this section will apply even if Advertiser’s remedies under this Agreement fail with respect to their essential purpose.
9.5. Advertiser acknowledges and understands that Company does not review Advertisements, or any Content contained therein, for accuracy or sufficiency. Advertiser will be fully responsible and liable for Advertisements and all Content contained therein. Company is not responsible for, and in no way warrants, guarantees, endorses, or ratifies, any representations or statements made or implied in Advertisements.
9.6. Advertiser further understands that Company’s placement or hosting of an Advertisement does not constitute any guarantee of a particular outcome or otherwise make Company responsible in any way for the success or failure of any Advertisement or any marketing, promotion, program, or other measure that Advertiser may undertake in connection with the App. Company does not guarantee any particular level of circulation, distribution, reach, or viewership in connection with any Advertisement.
9.7. Company will not be liable to Advertiser for any technical malfunctions, computer errors, loss of data, or other injury, damage, or disruption to Advertisements, the App, or other websites.
9.8. Advertiser will be liable for and must indemnify the Company, as well as its officers, directors, employees, agents, and affiliates, against any Claim brought against the Company as a direct or indirect result of (a) any negligence or other wrongful act or omission on the part of Advertiser or any person for whose acts or omissions Advertiser may be liable (including its Representatives) insofar as it relates to the subject matter contemplated by this Agreement and (b) Advertiser’s breach of this Agreement.
9.9. The provisions of this section will survive termination or expiration of this Agreement.
10. PROPRIETARY RIGHTS
10.1. Advertiser acknowledges that the Company owns the App and all material and content contained in it.
10.2. Nothing herein grants Advertiser any right, title, or license in the Company’s intellectual property rights.
10.3. To allow the Company to host Advertiser’s Advertisements on the App, Advertiser grants, to Company, a worldwide, perpetual, non-exclusive, sub-licensable, transferable, license-fee free and royalty free license to set-up and display Advertisements (including any identifying marks contained therein) on the App pursuant to the terms of this Agreement.
10.4. Other than as contemplated in this Agreement, neither party may publish or use any trademark, logo, or other identifying mark of the other party in any advertisement, sales promotion, press release, or other publicity and marketing material without the other party’s prior written consent.
11. CONFIDENTIALITY
11.1. Subject to Section 11(e), each party agrees, with respect to the other party’s Confidential Information:
(a) the Confidential Information is strictly confidential;
(b) they must not disclose or publish and must use their best endeavours and take all necessary or desirable measures to prevent the disclosure or publication of the Confidential Information to any third party;
(c) they must immediately notify the other party of any infringement, misuse or misappropriation of the Confidential Information of which they may become aware of;
(d) the Confidential Information and all information relating to the Confidential Information must be stored in a place which is safe and secure; and
(e) the Confidential Information will at all times remain the sole, absolute and exclusive property of the disclosing party. Nothing in this Agreement constitutes the grant of any right, title or interest of any kind in or relating to the other party’s Confidential Information and the parties must not make any claim to any such right, title or interest.
11.2. Advertiser must not make any use of the Company’s Confidential Information or any part of it to the competitive disadvantage of the Company or in a manner otherwise adverse to the business interests of the Company.
11.3. Notwithstanding any section in this Agreement, Advertiser acknowledges and agrees that any analytics, reports, analyses, data compilations and any other data and information that relate to the App or Member web traffic, online flow or activity in connection with any Advertisement constitutes Confidential Information that will be the property of the Company and which the Company may disclose, use and exploit for any business purpose in its sole discretion.
11.4. Subject to Section 11.5, each party must not disclose any Confidential Information of the other party to any person, other than: (a) their professional advisers in relation to their rights under and performance of the terms of this Agreement; (b) their respective officers, employees, agents or contractors for the sole purpose of complying with this Agreement; or (c) with the prior written consent of the other party.
11.5. The parties may disclose Confidential Information of the other party to the extent disclosure is required: (a) by Law; (b) to enforce this Agreement; or (c) to give effect to the terms of this Agreement.
11.6. For the avoidance of doubt, it will not be a breach of this Section 11 to disclose Confidential Information of the other party that: (a) is publicly available or has previously been disclosed as at the date of this Agreement; or (b) becomes publicly available subsequent to the date of this Agreement in the absence of a breach of confidentiality.
11.7. Each party acknowledges that their breach of this Section 11 may cause irreparable damage to the other party, for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies which may be available, the other party may seek and obtain injunctive relief or other urgent interlocutory relief against such a breach or threatened or suspected breach.
11.8. Each party undertakes to, immediately following termination of this Agreement (or, if requested at any other time by the other party, within 14 days of the request) return, or at the option of the other party, destroy and certify the destruction of, all documents and other materials (including copies) provided directly or indirectly to the party relating to or containing Confidential Information of the other party.
12. RESTRICTIVE COVENANTS
12.1. Company and Advertiser will each refrain from (a) making, issuing, publishing, or otherwise disseminating any disparaging or defamatory comments or statements, whether written or oral, about the other party—including its employees, agents, officers, or representatives—or the other party’s products or services and (b) otherwise taking any action that could reasonably be expected to adversely affect the personal or professional reputations of the other party—including its employees, agents, officers, or representatives.
12.2. Notwithstanding the foregoing, nothing in this Agreement will prevent the parties from making any truthful statement to the extent (a) necessary to rebut any untrue statements made about it; (b) necessary with respect to any litigation, arbitration or mediation involving this Agreement, including, but not limited to, enforcement of this Agreement; (c) required by law or by any court, arbitrator, mediator, or administrative or legislative body (including any committee thereof) with jurisdiction over such person; or (d) made as good faith competitive statements in the ordinary course of business. Advertiser acknowledges and agrees that Company may be required to disclose this Agreement in public filings.
12.3. Each party acknowledges and agrees that the other party may (without limiting its rights under this Agreement) seek and obtain injunctive relief or other urgent interlocutory relief against a party’s breach—or threatened or suspected breach—of this section.
12.4. Neither party may directly or indirectly engage in any conduct that will substantially diminish the value of the other party’s business, including, without limitation: (a) soliciting or attempting to solicit any business from any of the other party’s customers, clients, or prospects; or (b) offering employment to or hiring any employee or subcontractor of the other party.
12.5. Without the prior written consent of the Company, Advertiser may not—at any time, in any manner—either on its own behalf or on behalf of any other person or entity, directly or indirectly—hire or solicit any person who is then an employee of or provider of services for the Company or encourage any such persons to cease doing business with Company or to terminate or limit an existing relationship or arrangement with Company. Advertiser may not entice away or divert any person or entity who is a user, service-provider, or other affiliate for the Company or encourage any such persons to cease doing business with Company or to terminate or limit an existing relationship or arrangement with Company.
12.6. Advertiser may not, at any time, without the prior written consent of the Company, (i) attempt in any manner to deal directly or indirectly in any manner with any of the Company’s clients, sources, contacts, connections, or other individuals or companies related to the App or Company’s business, including by having any part in or deriving any benefit from Company, the App, or Company’s business—or any aspects thereof—independently from the Company or (ii) by-pass, compete, avoid, circumvent, or attempt to circumvent the Company relative to the App or Company’s business, including by utilizing any Confidential Information or by otherwise exploiting or deriving any benefit from Confidential Information.
12.7. Advertiser agrees and acknowledges that the restrictions in this Section 12 are necessary and reasonable in scope, area, and duration, and will not result in any undue hardship for Advertiser.
13. TAXES
Company will not be responsible for any taxes owed by Advertiser arising out of Advertiser’s relationship with Company as set forth in this Agreement. Any Advertiser residing in the United States or otherwise subject to pay U.S. income taxes on any earnings as a Advertiser must provide the Company with any relevant and necessary state and federal tax documentation. Advertiser is solely responsible for the reporting of all income and payment of all taxes, charges, and penalties associated with any amount received by Advertiser under these terms.
14. RELATIONSHIP OF THE PARTIES
14.1. Nothing in this Agreement establishes a partnership, a joint venture, or the relationship of principal and agent between the parties and neither party has authority or power to bind the other in any way.
14.2. Neither party will have the authority to bind the other to any contracts or commitments without the other party’s written consent. Neither party will engage in any conduct, or make any representation, that may suggest to any person that it is, for any purposes, an agent or representative of the other party.
15. ASSIGNMENT
15.1. Company may, upon notice to Advertiser, assign all or any of its rights under this Agreement to any person.
15.2. Advertiser’s rights, duties, and privileges pursuant to this Agreement may not be transferred or assigned, in whole or in part, without Company’s prior written consent. Such consent may be withheld at Company’s sole and absolute discretion.
16. NOTICES
All notices related to this Agreement must be in writing and delivered in a manner demonstrating receipt, including courier delivery, authenticated Internet and facsimile transmission, or, if mailed, then by registered or certified mail return receipt requested. Notice is effective upon receipt.
Company’s contact details are as follows:
Address: 2511 Brigden Road, Pasadena, CA 91104
E-mail: partners@thelittapp.com
Advertiser’s contact details are as set forth in in the Advertisers registration details provided in the App.
17. TERMINATION
17.1This Agreement may be immediately terminated by either party, without further liability or obligation to the other party, if: (i) the other party violates any applicable U.S. state or local laws, rules, regulations, or ordinances (including, without limitation, any applicable advertising regulations); (ii) the other party otherwise materially breaches any provision, warranty, or representation of this Agreement (or violates the non- breaching party’s fair and reasonable “morals clause,” as such term is commonly understood at common law); or (iii) the other party becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors.
17.2 Without limiting Section 17.1, the Company may terminate this Agreement without cause at any time by providing the Advertiser with 7 days’ prior written notice.
17.3 Sections 8-12 of this Agreement, and the obligations imposed upon the parties by those sections, will survive the termination of this Agreement.
17.4 Upon termination or expiration of this Agreement, the Company will promptly remove the Advertisement from the App.
17.5 Termination of this Agreement will have no effect on the parties’ rights and obligations hereunder with respect to those provisions that, by their very nature, are intended to survive any termination or expiration of this Agreement, including, without limitation, representations and warranties, indemnifications, payment obligations, limitations on liability, proprietary rights, and confidentiality. Similarly, early termination of this Agreement will not entitle Advertiser to any refunds.
18 DISPUTE RESOLUTION
18.1The parties agree that should any dispute arise out of or relating to this Agreement or the breach thereof, and the parties cannot settle the matter between themselves, the dispute will be submitted to mediation as a condition precedent to the commencement of any action at law. The mediation will be held in the City of Pasadena, State of California, in accordance with any statutory rules of mediation.
18.2If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to binding arbitration under the rules of the American Arbitration Association. The arbitrator’s award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
18.3The parties will share the cost of mediation equally. Unless otherwise agreed, and except as may be necessary to enforce payment of attorney’s fees by a non-cooperating party, all proceeds and submissions of the mediation will be confidential and may not be used for any purpose other than in the mediation proceedings.
19 MISCELLANEOUS Provisions
19.1 This Agreement will be governed and construed in accordance with the laws of the state of California, without giving effect to its principles of the conflict of law. The parties agree to submit themselves to the jurisdiction of the federal or state courts located in California in any action that may arise out of this Agreement and that such courts will have exclusive jurisdiction over all disputes between Company and Advertiser pertaining to this Agreement and all matters related hereto or thereto.
19.2 This Agreement, together with the LITT Global User Terms of Service, LITT Global Advertiser Terms of Service, LITT Global’s privacy policies, any amendments thereto, and additional policies or agreements between Advertiser and Company in connection with the Advertisements, the Business Manager Platform, the App, or the Services (as such terms are defined herein and in the LITT Global Terms of Service agreements), will constitute the entire agreement and understanding between Advertiser and Company concerning the Advertisements. Advertiser acknowledges and agrees that Advertiser has not relied upon any statement, promise, or representation made or given by or on behalf of Company that is not set out in this Agreement, the Advertiser Terms of Service, the User Terms of Service, LITT Global’s privacy policies, or any document expressly referenced herein.
19.3 The recitals to this Agreement and the Special Conditions set forth in the Schedule are integral parts of this Agreement and are incorporated herein by reference. To the extent that there is any inconsistency between the Special Conditions and any other term of this Agreement, the Special Conditions will prevail.
19.4 The headings in this Agreement are for convenience only and have no legal or contractual effect. To the extent allowed by law, the English version of this Agreement is binding, and any translations are provided for convenience only. All pronouns and any variations thereof will be deemed to refer to the masculine, feminine, neuter, singular, or plural as the identity of the subject entities or persons. Any word both capitalized and uncapitalized will be deemed to have the same meaning. As used herein, “including” and similar expressions are not words of limitation.
19.5 This Agreement will be considered to have been written jointly by the parties such that the rule of construing ambiguities against the drafter will have no force or effect. Each party waives the right to plead such as a defense to enforcement of this Agreement. Each party hereby acknowledges that it has had the opportunity to seek the advice of legal counsel before executing this Agreement.
19.6 No failure or delay by the Company in exercising any right, power, or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder. A power or right may only be waived in writing, signed by the party to be bound by the waiver. No written waiver will constitute, or be construed as, a waiver of any other obligation or condition of this Agreement.
19.7 This Agreement may be executed in counterparts, each of which will be deemed an original and together will constitute one and the same document. This Agreement may not be amended except by a writing signed by an authorized representative of both parties. The parties agree to execute all documents, and take any other actions, reasonably required to effectuate the purposes of this Agreement.
19.8 Each party agrees that all of its obligations undertaken herein will survive and continue after any termination or conclusion of this Agreement, including obligations with respect to the confidentiality and proprietary rights. Should any part of this Agreement be held unenforceable or invalid, all other parts will remain valid and enforceable.
19.9 Neither party will be liable for delays caused by fire, accident, labor dispute, war, insurrection, riot, act of government, act of God, public health crisis, or any other cause reasonably beyond the party’s control, however, each party will use all reasonable efforts to minimize the extent of any such delay. Company will not be liable to Advertiser (including Advertiser’s customers or affiliates) for any delay in performance or any failure in performance hereunder caused in whole or in part by reasons beyond the control of Company.
19.10 Each party will bear its own costs for: (a) the drafting, negotiation, preparation, execution, performance, and amendment of this Agreement; (b) the registration of, or any consent given or made under, this Agreement; and (c) the performance of any action by the party under this Agreement.
Schedule
Term
Unless otherwise agreed in writing, the Term will continue until the Advertiser or the Company terminates the Agreement as provided in the Termination clause above.
Advertising Fee
The Advertising Fee for each advertising module is available to view by the Advertiser in the App. Any variation to the Advertising Fee must be agreed in writing by the Company.
Special Conditions
Any Special Conditions are to be mutually agreed by both parties in writing.
Last updated: 2023-08-01