DEFINITIONS

  1. “massiveImpact” is a trading name of MassiveImpact International Limited, a private company limited by shares, registered in BVI.
  2. Advertisers are individuals or legal entities that market goods and/or services by advertising means.
  3. Affiliates are individuals or legal entities that provide their advertising spaces to “massiveImpact”.
  4. Advertisers and affiliates will jointly be referred to as “clients”.
  5. Users are individuals who are exposed to advertising material of advertisers on advertising spaces of affiliates.
  6. “Offer” means a promotional offer published by “massiveImpact” on the Program site, in an electronic mail or both, setting out an advertising offer on behalf of a Client and containing such additional terms and conditions as the Client and “massiveImpact”, in their discretion, consider necessary from time to time.

1. Mobile Affiliate Network/Services 
Advertiser agrees to accept and pay for, and “massiveImpact” agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, “massiveImpact” shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby “massiveImpact” will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, “massiveImpact” Ads (as defined below) through the “massiveImpact” either:

  1. On Publisher websites via the “massiveImpact” Ad Server for impressions-based Ad Campaigns (“CPM”); or
  2. By Affiliates via e-mail based marketing, search engine marketing, website based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay “massiveImpact” commissions depending on the number of valid clicks, impressions, sales/actions (“CPA”), applications and leads (“Leads”), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject IO (collectively, “Actions”). The applicable Actions, the fees due to “massiveImpact” for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. The “massiveImpact” shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.

2. Account
Upon the execution of this Agreement, Advertiser must register on the “massiveImpact” website and create a unique, password-protected account (“Account”). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser’s Account, whether authorized by Advertiser or not. Advertiser must immediately notify the “massiveImpact” of any unauthorized use of Advertiser’s Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that “massiveImpact” will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.

3. Ads
Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that “massiveImpact” shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that “massiveImpact” prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “massiveImpact” Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that “massiveImpact” is the sole owner of any and all intellectual property rights associated with the “massiveImpact” Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the “massiveImpact” Ads. Under no circumstances shall “massiveImpact” be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the IO(s). Advertiser shall submit all Advertiser Ads to “massiveImpact” for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any “massiveImpact” whatsoever, without obtaining “massiveImpact”‘s prior express written consent, after the applicable Ad has been approved by “massiveImpact”. Notwithstanding the foregoing, “massiveImpact” shall have sole discretion with respect to the creation of the “subject” and “from” lines used in its e-mailing of any Ads. “massiveImpact” reserves the right, in its sole discretion and without liability, to:

  1. Change any of its Ad Guidelines at any time; and
  2. To reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by “massiveImpact”. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where “massiveImpact” deems, in its sole discretion, that the Ads, including the applicable products and or services promoted by such Ads (“Advertiser Products”), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon “massiveImpact” or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and “massiveImpact” shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of “massiveImpact”‘s receipt of Advertiser’s cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.

4. Placement
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by “massiveImpact” and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Affiliate Network” or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that “massiveImpact” and/or its Affiliates and Publishers may determine, in their respective sole discretion.

5. Ad Codes
Unless otherwise stated in writing by “massiveImpact”, each Ad used by “massiveImpact” in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by “massiveImpact” (“Ad Codes”). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by “massiveImpact” to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, in the event an Ad Code is not recording tracking data properly due to error(s) and/or malfunction(s) originated and/or caused by Advertiser (including but not limited to technical issues, operator issues, loss of conversion and/or billing issues), as determined by “massiveImpact” at its sole discretion (each, a “Malfunction”), and Advertiser is receiving User traffic but Actions are not being recorded, or if Advertiser is using an alternative tracking method to pixel image tracking, then (i) Advertiser must immediately notify “massiveImpact” in writing of each Malfunction (a “Malfunction Notice”) that “massiveImpact” has not already notified Advertiser of its occurrence, and (ii) “massiveImpact” shall calculate due payouts in connection with such Malfunction(s), and debit Advertiser’s Account for such payouts (“Advertiser’s Failed Tracking Payouts”) for the time period which is between the occurrence of the Malfunction (as determined by “massiveImpact” at its sole discretion) and 48 hours following the discovery of the Malfunction by “massiveImpact”, either on its own or by a Malfunction Notice (a “Malfunction Discovery”), based upon a historical analysis of Advertiser’s Account as applied to a historical analysis of Publishers’ promotion of Advertiser. If there is not enough performance data with respect to Advertiser’s Account to make such analyses, “massiveImpact” shall calculate Advertiser’s Failed Tracking Payouts based upon a performance average of all Ad Campaigns made by “massiveImpact” in the Payouts Review Period (as defined below) for all Publishers engaged with “massiveImpact”. The calculation in both cases will include the amount of User traffic (i.e., impressions, clicks and conversions) that were sent to Advertiser in the last 3 days prior to the Malfunction (the “Payouts Review Period”). Notwithstanding the forgoing, “massiveImpact” shall have the right to terminate Advertiser’s respective Ad Campaign(s) (as applicable) within 48 hours of a Malfunction Discovery and such termination of Ad Campaign(s) by “massiveImpact” shall not derogate any way from “massiveImpact”‘s entitlement to the Advertiser’s Failed Tracking Payouts as set forth above in this Section 5. Notwithstanding anything herein to the contrary, “massiveImpact”‘s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or any other third party. Please note that in event Advertiser is unable to send “massiveImpact” data due to malfunction occurred with integration/measuring or malfunction occurred with the applicable carrier and further reporting conversions to “massiveImpact”, Advertiser shall compensate “massiveImpact”. Such compensation shall be calculated as follows: average conversion rate of the last 3 days x (no. of days).

6. Payments
The rates for Actions shall be set forth in the applicable IO(s). “massiveImpact” will invoice Advertiser twice monthly. Unless otherwise set forth in the applicable IO, payment will be due to “massiveImpact” within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, “massiveImpact” may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5% per month or the maximum amount permitted by law). In addition, Advertiser shall be liable to “massiveImpact” for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by “massiveImpact” and/or any of its Publishers or Affiliates.

7. Leads/CPA/Unaccepted Actions
In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay “massiveImpact” for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:

  1. It rejects within five (5) days of its receipt thereof; and
  2. Both parties determine is not a Valid Action (as defined below). Where “massiveImpact” determines that such Action is a Valid Action, Advertiser must pay for same. A “Valid Action” means an individual person that:
    1. Is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
    2. In the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
      1. Will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
      2. Will not use the information contained in the Unaccepted Action Data on its own behalf in any “massiveImpact” not expressly authorized by “massiveImpact”;
      3. Will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product;
      4. Will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
      5. Will notify “massiveImpact” as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to “massiveImpact” in the investigation and prosecution of any such unauthorized use or disclosure.

8. Term/Termination
The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon five (5) business days’ prior written notice. Upon termination or expiration of the Agreement for any reason:

  1. Advertiser will pay “massiveImpact” all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 herein above;
  2. Any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
  3. Any and all Confidential Information or proprietary information of either party that is in the other party’s possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.

9. Warranty/Limitation of Liability
THE “massiveImpact”, SERVICES, “massiveImpact” ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY “massiveImpact” UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, “massiveImpact” MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, “massiveImpact” DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE “massiveImpact”, SERVICES, “massiveImpact” ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. “massiveImpact” HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND “massiveImpact” DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. “massiveImpact” HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND “massiveImpact” DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE “massiveImpact”, SERVICES, “massiveImpact” ADS, AD GUIDELINES AND/ OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. “massiveImpact” MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL “massiveImpact” BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF “massiveImpact” HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. “massiveImpact” WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND “massiveImpact”‘S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, “massiveImpact”‘S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO “massiveImpact” BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. “massiveImpact” SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.

10. Representation and Warranties
Advertiser represents and warrants that:

  1. It has the power and authority to enter into and perform its obligations under the Agreement;
  2. At all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws and all rules and regulations promulgated under such state laws (collectively, “Laws”);
  3. It owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, “massiveImpact” Ads, by “massiveImpact”, its Publishers and Affiliates, as contemplated by the Agreement;
  4. At all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
  5. It will not disable “back” browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
  6. Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
  7. For CPA and Leads Campaigns, the Ads, and/or the landing page from each Ad where an Action is completed (for example, Advertiser’s website page where an end-user is directed when such end-user clicks on the Ad, fills in a registration form or takes a similar action in connection with the Ad) contains a prominent link to Advertiser’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to end users regarding Advertiser’s use, collection and disclosure of their personal information;
  8. Advertiser shall fulfill all commitments made in the Ads;
  9. No Ad is targeted to end-users under the age of eighteen (18);
  10. Prior to loading any computer program onto an individual’s computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are disclosed in Advertiser’s privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;
  11. The Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:
    1. Contain any misrepresentations or content that is defamatory;
    2. Contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
    3. Promote or support gambling or sweepstakes or contests; or
    4. Contain any “worm,” “virus” or other device that could impair or injure any person or entity;
  12. Use of the MoPub iOS SDK. MoPub iOS SDK is open sourced under the New BSD license and the use and redistribution of the MoPub iOS SDK in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
    1. Redistributions of source code must retain the below copyright notice, this list of conditions and the following disclaimer.
    2. Redistributions in binary form must reproduce the below copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
    3. Neither the name of MoPub nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

    Publication of a copyright notice as follows: Copyright (c) 2013 MoPub Inc. All rights reserved.

    THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

  13. Use of the MoPub Android SDK. MoPub Android SDK is open sourced under the New BSD license and the use and redistribution of the MoPub Android SDK in in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
    1. Redistributions of source code must retain the below copyright notice, this list of conditions and the following disclaimer.
    2. Redistributions in binary form must reproduce the below copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
    3. Neither the name of MoPub nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

    Publication of a copyright notice as follows: Copyright (c) 2013 MoPub Inc. All rights reserved.

    THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

11. Indemnification
Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with any potential customers that the “massiveImpact” generates for the Advertiser. Advertiser shall irrevocably defend, indemnify and hold “massiveImpact”, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:

  1. Advertiser’s breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;
  2. Any claim that “massiveImpact” is obligated to pay any taxes in connection with Advertiser’s participation hereunder.

12. Confidentiality
For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:

  1. A party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
  2. The material terms of the Agreement and/or any associated IO(s);
  3. With respect to “massiveImpact”, the Unaccepted Action Data and suppression lists; and
  4. With respect to “massiveImpact”, the Unaccepted Action Data and suppression lists; and
  5. Any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
    1. Who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
    2. Who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
      1. Is generally available to or known to the public through no wrongful act of the receiving party;
      2. Was independently developed by the Receiving Party without the use of Confidential Information; or
      3. Was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.

13. Non-Circumvention
“massiveImpact” reserves the right to pursue injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and any and all other remedies available to “massiveImpact” at law or in equity.

14. Force Majeure
Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

15. Miscellaneous

  1. Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:
    1. An acquirer of all or substantially all of such party’s equity, business or assets;
    2. A successor in interest whether by merger, reorganization or otherwise; or
    3. Any entity controlling or under common control with such party.
  2. Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the SAR of Hong Kong. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of court system of the SAR of Hong Kong and further agrees to comply with all the requirements necessary to give such court jurisdiction.
  3. Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
  4. Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
  5. Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that “massiveImpact” acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).