This Advertising Services Agreement (the “Agreement”), effective on the date agreed to on-line (the “Effective Date”), is entered into by and between Monetize Experts and the individual or entity who entered into Company’s Insertion Order or signed up through the Company’s on-line interface (“Advertiser”) (each a “Party,” and collectively the “Parties”).
WHEREAS, Advertiser wishes Company to distribute and/or syndicate advertising material for Internet users (“Users”) through Company’s network of Internet properties;
NOW, THEREFORE, in consideration of the foregoing and for other good and valid consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1.1 Action means some activity or transaction involving a User (such as a sale, click, impression, viewing of a webpage, submission of certain User Data, subscription or completion of a form) in connection with a display of Advertising Material that entitles Company to payment under this Agreement. Specific Actions to be delivered by Company may be set forth in an applicable Insertion Order or otherwise communicated to Advertiser by Company.
1.2 Advertiser Property means any Advertiser website or other Internet property to which Advertising Materials links.
1.3 Advertising Material means any images, text, sound, video or other content used as part of, or relating to, an advertisement, including all splash and landing pages, subscription pages and approval processes owned, controlled, or licensed by Advertiser.
1.4 Advertising Services means:(i) Company’s distribution and/or syndication of advertising material through the Network, including without limitation through websites, downloadable applications, toolbars, plugins, proxies, and other software applications; (ii) provision of “in-text” advertising services that enable Advertiser to bid on and/or purchase keywords to be converted to links or other Advertising Material when appearing in website text that is viewed by Users on Internet properties in the Network; (iii) provision of “browser window” advertising services that enable Advertiser to bid on and/or target various web addresses (URLs) or associated keywords of websites, which when matched by User activities when browsing Internet properties in the Network, will trigger the generation of a new browser window or new browser tab displaying the Advertising Material; (iv) the Dashboard and Company’s platform website; and (v) all software, data, reports, analytics, technologies, and content associated with or made available through any of the foregoing, including without limitation Company’s proprietary optimization and behavioral advertisement targeting technology and algorithms.
1.5 Dashboard means the Company’s account management and reporting interface, and which serves as the exclusive tracking and reporting system for all purposes relating to the Agreement.
1.6 Network means Company’s proprietary network of Internet properties (which may include Company’s own websites or downloadable software applications, as well as websites, social media pages, and downloadable software applications owned or operated by third-party publishers and affiliates).
1.9 User Data means any and all data, whether personally identifiable or non-personally identifiable, collected from or about a User through or as a result of a User’s interaction with Advertising Material, as well as any data derived from such data. User Data includes, without limitation, the fact that a User completed an Action.
2.1 Account Setup. Company may provide Advertiser with reports from Company’s Dashboard. Advertiser shall be solely responsible for maintaining the confidentiality of its account and associated information and for any and all activity under Advertiser’s account, and shall immediately notify Company of any unauthorized use of its account. If Advertiser’s account becomes inactive, Company may charge a monthly inactive account fee as communicated to Advertiser. Advertiser shall not permit or assist any third party in accessing the reports from the Dashboard, and shall not assign or otherwise allow access to its account by any third party without Company’s prior written permission. Advertiser acknowledges and agrees that the foregoing is a material term of this Agreement, and any breach thereof will result in forfeiture of all fees paid to Company in addition to other liability under this Agreement.
2.2 Advertising Material. Advertiser shall furnish Company with Advertising Material to be distributed and/or syndicated, as applicable. All such Advertising Material must conform to Company’s specifications and guidelines as they are published from time to time by Company or otherwise communicated to Advertiser. All Advertising Material is subject to Company’s prior written approval, which it may withhold in its sole discretion. Advertiser at all times shall remain fully responsible for the content of all Advertising Material (including ensuring its compliance with all applicable Laws). Advertiser agrees that Company shall have no liability whatsoever relating to Advertising Material or any use or dissemination of Advertising Material (including its distribution and/or syndication pursuant to this Agreement). If Advertiser is syndicating Advertising Material on behalf of other advertisers, then Advertiser represents and warrants that it has the right to bind such third-party advertisers to this Agreement, and all references to “Advertiser” in this Agreement shall be deemed to include such third-party advertisers. Advertiser shall not in any way utilize or promote, and the Advertising Material and Advertiser Property shall not contain or link to, any Prohibited Materials. Advertiser shall not in any way engage in any Prohibited Activities. Company, at any time in its sole discretion and without liability, may suspend the use or dissemination of, or remove from its Network, Advertising Material for any good-faith reason (including if Company believes that Advertiser has engaged in Prohibited Activities or that the continued use or dissemination of the Advertising Material may expose Company or its third-party publishers and affiliates to civil or criminal liability or reputational harm), even if Company has previously approved the Advertising Material. In the event that Company determines in its sole good faith discretion that Advertiser has engaged in any Prohibited Activities or that the Advertising Material or Advertiser Property contains any Prohibited Materials, Advertiser agrees and acknowledges that any unspent funds or pre-paid amounts made to Company are forfeited, and that Company may keep any such unspent or pre-paid amounts in addition to any other remedies under this Agreement or under applicable Law, and any disputes relating to such amounts shall be waived without requiring a signed written waiver from Advertiser.
2.3 Placement; Network Publishers and Affiliates. The positioning, placement, frequency, timing, and other technical decisions related to distribution of Advertising Material shall be made by Company in its sole discretion, and Company does not guarantee the number of times Advertising Material will be displayed or viewed, the numbers of impressions, clicks or other Actions that will be generated, or the availability of any Internet properties for the display of Advertising Material. Advertiser acknowledges and agrees that Company cannot monitor or control all acts and business activities of third-party publishers and affiliates in its Network or the content of their Internet properties. Accordingly, Company shall not be liable for any acts or omissions of such persons or any content featured on or in connection with their Internet properties.
3.1 Tracking and Reporting. Company’s reporting system shall be the exclusive tracking and reporting system for all purposes relating to the Agreement, including for determining valid Actions and amounts owed to Company. Reported activity may include deductions for processing fees and certain operational costs. In the event of any discrepancy between activity reported by Advertiser’s own reporting mechanism and activity reported by Company’s, Company shall review in good in faith any detailed documented tracking data provided by Advertiser. However, if in Company’s sole good-faith discretion the discrepancy cannot be resolved, Company’s reporting shall be final, binding and determinative. Company may require Advertising Material to include, in unaltered form, a special transaction tracking computer code provided by Company (an “Ad Code”). Advertiser will not modify, circumvent, impair, disable or otherwise interfere with any Ad Codes.
3.2 Company Intellectual Property. All materials, systems, and any related technologies provided in connection with this Agreement and Advertising Services, including their operations, interfaces, and features, and any improvements, modifications, or derivatives thereof, are the exclusive property of Company and are protected under applicable copyright, trademark and other intellectual property laws and constitute Confidential Information and trade secrets of Company. All rights in, to, under, and relating to the Advertising Services, including without limitation the Dashboard and Company platform website, are reserved to Company, except for the limited licenses granted to Advertiser herein. Advertise shall not, and shall not permit any third party to: (i) tamper with, disable, copy, modify, decompile, reverse engineer, block, interfere with the operation of, or otherwise impair the functionality of any Advertising Services; (ii) use any Advertising Services to create any other product or service; or (iii) attempt to derive the source code or the underlying algorithms, protocols, or technologies of the Advertising Services.
3.3 Licenses. Company grants Advertiser a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free limited license to use the the Company’s platform website, and their related services pursuant to the Agreement for the sole purpose of fulfilling Advertiser’s obligations during the term of the Agreement. Advertiser grants Company a non-exclusive, worldwide (unless dissemination of Advertising Material is limited to particular geographic areas as specified in an Insertion Order), royalty-free license to use, reproduce, publish, edit, display, distribute and syndicate the Advertising Material and Advertiser’s corporate names, logos and trade or service marks in connection with this Agreement, and to permit members of its Network to do so.
4.1 Calculation of Payment. Advertiser shall pay Company as follows: (i) Advertiser shall pay Company for Actions, as defined or described in an Insertion Order or otherwise agreed upon in writing, and determined by Company in its sole discretion based on its reporting system; (ii) in connection with Company’s in-text Advertising Services, Advertiser shall pay Company a cost-per-click (“CPC”) fee for each User click on a link generated through Company’s Advertising Services based on Company’s reporting system, and where the CPC fee varies based on the country in which a click occurs, the country shall be determined by Company in its sole discretion based on its IP address geography tracking mechanism; and (iii) in connection with the Company’s browser window Advertising Services, Advertiser shall pay Company a cost-per-view (“CPV”) fee based on Company’s reporting system.
4.2 No Setoffs or Chargebacks. Advertiser may not charge back or set off any Actions or any amounts invoiced or reported under this Agreement. Any charges not timely disputed as provided in Section 4.3 shall be deemed final and owing, and any disputes relating to such charges shall be waived.
4.3 Payment Terms. Advertiser shall pay Company on a weekly basis with respect to Actions reported during the prior week, or on a more frequent basis if otherwise agreed upon with Company. Each payment shall be sent to the address and contact identified in the Insertion Order or otherwise agreed upon in writing. Payments from Advertiser shall be due seven (7) days after the completion of the Actions during the weekly or other payment period. All payments will be in US dollars. If Advertiser disputes a payment, it shall send Company written notification of the dispute, along with detailed backup documentation supporting Advertiser’s position, within the seven (7) day payment period. Company will review the documentation in good faith and make a final determination. Any undisputed amounts which are not paid within the timeframe stated above shall bear interest at the rate of 1% per month or the highest rate permitted by applicable law, whichever is the lesser amount. Advertiser shall pay all costs related to Company’s collection efforts for unpaid fees, including without limitation all collection agency costs and all litigation or arbitration-related costs, including attorneys’ fees. Company may require Advertiser to maintain a valid credit card on file with Company, which Advertiser hereby authorizes Company to charge for all amounts due under this Agreement. Failure to maintain valid and up-to-date credit card information, or any attempt to revoke the forgoing authorization, shall constitute a breach of the Agreement and entitle Company to terminate Advertiser’s access to the Advertising Services without further notice. Advertiser shall be responsible for all bidding and purchasing activity under Advertiser’s account, whether authorized by Advertiser or not. Except for taxes on Company’s net income, all value added, sales, excise and other taxes arising out of or relating to this Agreement shall be the responsibility of Advertiser. If Company is required to collect and remit any such taxes, the additional amount of taxes will be invoiced to Advertiser and payable in the same manner as other amounts under this Agreement.
4.4 Audit Rights. Advertiser shall maintain at its principal place of business true and correct books of account containing a record of all information pertinent to the transactions contemplated hereunder during the term of this Agreement and for a period of three (3) years thereafter. In the event that Company in good faith disputes any payments, Company or its agent shall be entitled to review and copy, during regular business hours and upon not less than three (3) business days’ prior notice, such books and records for the purpose of verifying the accuracy of all calculations and the amount of payments due hereunder. Any such review will be made not more than twice during each calendar year. Advertiser shall cooperate and render assistance as reasonably requested in connection with any such Company audit. Advertiser shall pay to Company any underpayment revealed by any such audit within seven (7) days after receiving notice thereof. All audits described in this paragraph shall be conducted at Company’s expense; provided, however, that in the event any such audit reveals an underpayment to Company of 5% or more during the relevant payment period, Advertiser, in addition to paying the amount of the underpayment, shall reimburse Company’s reasonable out-of-pocket costs associated with such audit within seven (7) days after receiving notice thereof.
5.1 Protection of Confidential Information. Each Party agrees it will: (i) not disclose to any third party or use the Confidential Information disclosed to it by the other Party except as expressly permitted in this Agreement or as otherwise necessary to perform its obligations or exercise its rights under the Agreement; and (ii) take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control. “Confidential Information” of a Party shall mean all information of, or concerning, such Party, its affiliates, and its and their respective directors, partners, officers, employees, managers and members, which is confidential, proprietary and/or competitively sensitive and is disclosed to or obtained by the other Party. Without limiting the foregoing, Company’s Confidential Information includes the identities of and information relating to its relationships with publishers, affiliates and other members of its Network; all code, technology, design, technical information and reporting and account management systems, features, and interfaces used to provide the Advertising Services hereunder (including Company’s proprietary optimization and behavioral advertisement targeting technology and algorithms); and the terms of the Agreement. Additionally, Advertiser may not use or disclose any User Data in a manner that identifies Company as the source. Confidential Information does not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving Party lawfully knew prior to receiving such information from the disclosing Party; or (iv) the receiving Party develops independently without use of the disclosing Party’s Confidential Information. In addition, each Party may disclose Confidential Information of the other Party as necessary to comply with the requirements of legal or administrative process, provided that such Party provides the other Party with reasonable advance notice of any such intended disclosure and cooperates reasonably with its efforts to obtain a protective order. Finally, the Parties hereby agree that except as required by law or with the written consent of both Parties, neither may make any press release or other public announcement regarding their relationship or this Agreement.
5.2 Non-Circumvention; Non-Competition. Advertiser agrees and acknowledges that Company has proprietary relationships with the publishers, affiliates and other Internet property owners or operators (collectively, “Company Partners”) that participate in Company’s Network. Accordingly, during the term of the Agreement and for six (6) months thereafter, neither Advertiser nor any affiliated entity, directly or indirectly, either on behalf of itself or any third party, may take any action with the intent or effect of: (a): (i) circumventing Company’s relationship with, (ii) serving as an Advertiser for, using as a publisher, or otherwise engaging to distribute or syndicate advertising, or (iii) encouraging to reduce or terminate its relationship with Company, any Company Partner that Advertiser knows or reasonably should know has a relationship with Company; or (b) developing, marketing, selling, licensing, or providing any software, technology, or services that are similar to or competitive with the Advertising Services, or engaging in any activities in preparation of any of the foregoing. Advertiser acknowledges and agrees that the foregoing restrictions are reasonable and necessary for Company to protect its rights in its Confidential Information and trade secrets that it has invested substantial time and resources to develop.
5.3 Equitable Relief. The Parties agree that any breach of either Party’s obligations under this Section 5 would result in irreparable injury, and that in the event of any breach or threatened breach hereof, the complaining Party will be entitled to seek injunctive relief in addition to any other remedies to which such Party may be entitled, without the necessity of posting bond.
6.1 Term. The term of the Agreement shall commence on the Effective Date and shall continue until terminated as permitted herein.
6.2 Termination. Company may terminate this Agreement for any reason upon email or other written notice, or immediately without notice if Company in good faith believes that Advertiser has breached any provision of the Agreement or if Advertiser fails to pay any amount required by this Agreement when due. Advertiser may terminate this Agreement for any reason upon ten (10) days’ prior written notice to Company. Upon any termination of the Agreement, all licenses granted hereunder shall immediately terminate, and each Party shall promptly return to the other, or destroy, any Confidential Information or copies thereof in such Party’s possession, whether in tangible or electronic form.
6.3 Survival. All provisions of the Agreement relating to ownership of data or intellectual property, confidentiality, payment, indemnification, non-circumvention, warranties, disclaimers of warranties and limitations of liability, as well as any other provisions hereof which, by their nature, are intended to survive termination of this Agreement, shall do so.
7.2 Ownership of Data. All User Data is exclusively owned by Company; however, Advertiser owns all data submitted by Users directly to Advertiser, such as through the completion of forms and information submitted on the Advertiser Property. Notwithstanding Company’s ownership of the User Data, Advertiser may use aggregate link or tracking data, such as number of clicks or impressions and date/time of User activity in connection with this Agreement, for internal research and analysis.
7.3 Downloadable Software Inventory. Advertiser acknowledges and agrees that Advertising Material may be distributed and/or syndicated through advertising inventory provided through downloadable applications (including without limitation toolbars, plugins, proxies, and other software applications), which may add Advertising Material to websites as Users browse the web, that Company does not have control over the content surrounding the placement and display of Advertising Material, and that Company may not have a contractual relationship with the author, distributor, or owner of the content surrounding the Advertising Material. Notwithstanding any provisions herein to the contrary, Company hereby disclaims all damages, liabilities, warranties, and representations and has no obligations to indemnify Advertiser for the placement or display of Advertising Materials on, in, or near online content not directly controlled by Company.
Advertiser represents, warrants and covenants that: (i) it is duly organized, validly existing and in good standing in its jurisdiction of incorporation or formation and each jurisdiction in which it is required to be licensed or registered; (ii) this Agreement has been duly executed and delivered by Advertiser and constitutes a legal, valid and binding obligation of Advertiser, enforceable in accordance with its terms; (iii) the Advertising Material, the Advertiser Property and Advertiser’s products, services and business activities will not violate any Laws or infringe any copyright, trademark, patent, publicity, privacy or other proprietary right of a third party; (iv) Advertiser will not engage in any Prohibited Activities; and (v) any products or software promoted in the Advertising Material does not, are not designed to, and will not compete with, disable, remove, or impair the functionality of any websites, toolbars, or other applications of Company’s Network, or facilitate with the disabling or removal of any such websites, toolbars, or other applications. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE NETWORK, COMPANY’S TECHNOLOGY, SYSTEMS, DASHBOARD, PLATFORM WEBSITE, ADVERTISING SERVICES, AND ADVERTISING CHANNELS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY, ACCURACY, ABSENCE OF VIRUSES OR OTHER MALICIOUS SOFTWARE, UNINTERRUPTED OR ERROR-FREE OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. COMPANY’S ADVERTISING SERVICES AND CHANNELS, TECHNOLOGY, SYSTEMS AND NETWORK ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. Some jurisdictions do not allow the disclaimer of implied warranties or exclusion of damages. To the extent that this Section 8 or the limitations of liability in Section 9 are held unenforceable by a court of competent jurisdiction, such provision or provisions shall be reformed to conform as closely as legally permissible to the Parties’ intent expressed herein.
IN NO EVENT SHALL COMPANY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR FOR ANY LOST PROFITS OR REVENUES (WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY) IN ANY WAY RELATING TO THIS AGREEMENT, EVEN IF COMPANY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM OR DAMAGE OR SERIES OF CLAIMS OR DAMAGES IS LIMITED TO THE AMOUNTS PAID TO COMPANY BY ADVERTISER UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS PERIOD PRECEDING WHEN THE CLAIM OR ALLEGED DAMAGES AROSE.
Advertiser agrees to defend, indemnify and hold harmless Company, its affiliates, and its and their respective members, managers, partners, officers, employees, contractors and agents, from and against any and all costs, losses, damages, judgments and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred in connection with any third-party claim or demand that arises out of or relates to: (i) any actual or alleged breach of Advertiser’s representations, warranties or other obligations in this Agreement; (ii) any actual or alleged violation by Advertiser or its personnel of any Laws; (iii) any allegation based on Advertiser’s participation in Prohibited Activities or that the Advertising Material or Advertiser Property contains, promotes or links to Prohibited Materials; or (iv) Advertiser’s use of the Advertising Services, including without limitation any keywords, links, URLs, or other Advertising Material bid on, purchased by, or used by Advertiser in connection with the in-text and browser window Advertising Services. Without limiting the foregoing, Advertiser’s indemnification obligations under this Section includes any claims of direct, contributory, or vicarious trade or service mark infringement, unfair competition, false or misleading designation of origin or statement of affiliation or sponsorship, or false or deceptive advertising under the federal Lanham Act, any state trademark, unfair competition or consumer protection statute, the Federal Trade Commission Act, or the common law.
11.1 Independent Contractors. The Parties are independent contractors and nothing contained in this Agreement shall be deemed to constitute either Party an agent, representative, partner, joint venturer or employee of the other Party for any purpose.
11.2 Governing Law; Venue; Attorneys’ Fees. This Agreement shall be governed by the laws of the United States of America and the Commonwealth of Pennsylvania, without giving effect to the conflict of laws rules thereof. Each Party consents to the sole and exclusive jurisdiction of the federal and state courts located in Philadelphia, Pennsylvania, in all actions arising out of this Agreement. In the event of an action or proceeding by either Party to enforce or exercise its rights under this Agreement, the prevailing Party shall be entitled to be reimbursed for its reasonable attorneys’ fees and out-of-pocket legal costs. In the event of a payment dispute or any claim or demand by Company regarding amounts owed under this Agreement and at Company’s sole election, the Parties agree to arbitrate any such dispute, claim, or demand in accordance with the Expedited Procedures of the American Arbitration Association (“AAA”) (Rules E1-E10), regardless of the amount in controversy, to be administered by the AAA as set forth below. In the event that Advertiser is located outside of the United States (which, in the event of a dispute regarding location information, will be conclusively determined by Company in its sole discretion based on its geography tracking mechanism), Company has the sole discretion of electing to settle any disputes and actions arising out of this Agreement by: (i) bringing suit in federal or state court in Philadelphia, Pennsylvania; (ii) bringing suit in a court of competent jurisdiction in the country in which Advertiser is located; or (iii) binding arbitration administered by the International Centre for Dispute Resolution (“ICDR”) in accordance with its International Arbitration Rules (or the Expedited Procedures of the AAA for payment-related disputes), as modified below. The place of arbitration and all arbitration hearings will be Philadelphia, Pennsylvania, USA. All arbitrations will be conducted by a single arbitrator unaffiliated with either Party and be in English; all documents and other evidence not originally in the English language will be provided in both its original language and in an English translation.
11.3 Matters Relating to the Agreement. This Agreement, and the relevant information contained in any applicable Insertion Orders hereunder, contains the entire understanding and agreement of the Parties with respect to the subject matter contained herein. This Agreement supersedes all prior oral or written understandings and agreements relating thereto except as expressly otherwise provided. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to any law, the remaining provisions shall remain in full force and effect as if said provision never existed. No waiver or amendment of any provision of this Agreement shall be effective unless both Parties consent in writing to such waiver or amendment. No failure or delay by either Party in exercising any rights, power or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. This Agreement is not intended to create any third-party beneficiary rights.
11.4 Force Majeure. Except for payment, neither Party shall be responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, such as riots, war, public disturbance, labor dispute, fire, explosion, storm, flood, acts of God or terrorism.
11.5 Non-Disparagement. During the term of the Agreement and thereafter, neither Advertiser nor any affiliated entity, directly or indirectly, may take any action that is intended, or would be reasonably be expected, to disparage or harm the reputation or business of Company or any of its affiliates, directors, officers, agents, or employees.
11.6 Assignment. Neither Party may assign its rights or obligations under this Agreement without the other Party’s prior written consent. However, Company may assign this Agreement to an affiliated company or to any successor to substantially all of its assets or business. This Agreement shall be binding on each party’s successors and permitted assigns. The Parties agree and acknowledge that the foregoing is a material term of this Agreement.
11.7 Notices and Updates. Any notice to Advertiser shall be effective upon Company’s sending of an email to the address currently on file with Company, or posting of a notice on the Company’s website. Company may amend or replace this Agreement at any time, and will notify Advertiser of material changes by posting a notice on the Company’s platform website and a link to the then-current version of this Agreement, or by other suitable means. Such amendment or replacement of this Agreement will become effective immediately upon posting to the Company’s platform website or other Company website, and Advertiser’s use of the Advertising Services after that date will constitute acceptance of the updated Agreement. Advertiser’s sole and exclusive remedy if it objects to the amended or new Agreement is to terminate its use of the Advertising Services.