ADKNOWLEDGE ENGAGE PUBLISHER TERMS AND CONDITIONS

THESE ADKNOWLEDGE ENGAGE PUBLISHER TERMS AND CONDITIONS (“TERMS”) ARE ENTERED INTO BY THE ENTITY OR SOLE PROPRIETOR OR AGENT THEREOF THAT ACCEPTS THESE TERMS ELECTRONICALLY (“PUBLISHER”) AND ADKNOWLEDGE, INC. (“ADKNOWLEDGE”). PLEASE READ THESE TERMS AND ANY RELATED POLICIES PROVIDED BY ADKNOWLEDGE RELATING TO THESE TERMS (COLLECTIVELY, THE “AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN ADKNOWLEDGE AND PUBLISHER TO PARTICIPATE IN THE ADKNOWLEDGE ENGAGE PUBLISHER PROGRAM. IF THIS AGREEMENT IS UNACCEPTABLE TO YOU, OR IF ANY AMENDMENT TO THIS AGREEMENT IS UNACCEPTABLE TO YOU, YOU MUST NOT PARTICIPATE IN THE ADKNOWLEDGE ENGAGE PUBLISHER PROGRAM.

1. Definitions.
   1. “Action” means any action linked to an Ad, including without limitation any registration, form submission, offer response, or purchase.
   2. “Ad” means material that (i) promotes an Advertiser brand, product or service, and (ii) is provided by Adknowledge for display on or in connection with the Adknowledge Engage Software, which may include, without limitation, banner ads, text ads, buttons, links and other interactive or promotional features.
   3. “Advertiser” means any individual or entity having an agreement with Adknowledge or a third party to serve Ads.
   4. “Adknowledge Engage Publisher Program” is that program by which Adknowledge provides the Adknowledge Engage Software to publishers, which may be monetized through Ads therein provided by Adknowledge or a third party.
   5. “Adknowledge Engage Software” means the proprietary Adknowledge software, as made available to Publisher by Adknowledge, which (i) analyzes the content of a website and suggests other content on the website which may be of interest to users, and (ii) displays Ads.
   6. “Agent” means the third party that entered into the Agreement on behalf of Publisher.
   7. “Confidential Information” means (i) the terms and conditions of this Agreement; (ii) any statistics or other data relating to the Adknowledge Engage Software; and (iii) any information provided by Adknowledge that is identified as confidential or proprietary or should reasonably be regarded as confidential.
   8. “CPA” means cost per action and refers to the amount paid by Advertisers for each specific Action.
   9. “CPC” means cost per click and refers to the amount paid by Advertisers for each click of an Ad.
   10. “CPM” means cost per thousand impressions and refers to the amount paid by Advertisers per one thousand impressions.
   11. “Gross Revenue” means the amount received and recognized by Adknowledge with respect to Actions undertaken by Users on Ads (including, without limitation amounts paid by Advertisers on a CPA, CPC, or CPM basis) for which Adknowledge has received a valid Advertiser tracking id. Gross Revenue may be adjusted by Adknowledge for any credits, agency commissions or discounts, chargebacks, bad debt expenses, refunds for undelivered or misdelivered impressions, taxes (excluding taxes assessed on the net income of Adknowledge) and other governmental charges, adjustments made by Adknowledge or its advertising partners to amounts paid or payable to Publisher based on the quality of Users and/or Actions, and the quality and validity of clicks on Ads and of Ad impressions, as determined by Adknowledge in Adknowledge’s sole and absolute discretion, and all amounts Adknowledge is not obligated to pay pursuant to this Agreement.
   12. “Personally Identifiable Information” shall mean any data or other information that can be used to identify, contact or locate a natural person, including but not limited to a natural person’s name, address, telephone number, e-mail address or social security number.
   13. “Publisher Websites” means those websites owned and controlled by Publisher and registered with Adknowledge through the Adknowledge Engage Publisher Program upon which Publisher implements the Adknowledge Engage Software.
   14. “User” means a human Internet user.
   15. “$” shall mean United States currency.
2. Services.
   1. Adknowledge Engage Publisher Program. Adknowledge reserves the right to improve, modify, remove, suspend, or discontinue, temporarily or permanently, in whole or in part, the Adknowledge Engage Publisher Program and the Adknowledge Engage Software or any data, information, content, software, technology, Ads, or features appearing on and/or offered through the Adknowledge Engage Software at any time at its sole discretion without notice and without liability.
   2. Publisher Information. Publisher acknowledges and agrees that information obtained or collected by Adknowledge relating to Publisher’s participation in the Adknowledge Engage Publisher Program is subject to the Adknowledge B2B Privacy Policy located at http://results.adknowledge.com/LP=15 (or successor URL thereto). In addition, Publisher hereby grants Adknowledge the right to access, obtain, index, and cache data from the Publisher Websites including, but not limited to, by automated means such as crawling, and to provide such information to third party service providers for purposes of providing the Adknowledge Engage Publisher Program under this Agreement.
   3. Agent Relationship. Upon Adknowledge’s request, Agent will make available to Adknowledge written confirmation of the relationship between Agent and Publisher.
3. Publisher Obligations.
   1. Publisher shall implement the Adknowledge Engage Software and deliver the Ads in accordance with the terms of this Agreement and any placement requirements and reasonable technical specifications provided by Adknowledge to Publisher. Publisher shall not modify the display, order, look and feel, or other attributes of the Ads, unless otherwise allowed by Adknowledge in the Adknowledge Engage Publisher Program. Any exceptions must be approved by Adknowledge, in advance, in writing.
   2. Publisher shall cooperate with Adknowledge in good faith, on an ongoing basis, to implement the Adknowledge Engage Software and display the Ads on the Publisher Website(s).
   3. Publisher shall not, and shall not authorize or encourage any third party to: (i) edit, modify, filter, re-order, or change the order of the content or information contained in any Ad, or remove, obscure or minimize any Ad in any way; (ii) frame, minimize, remove or otherwise inhibit the full and complete display of any website accessed by a User after clicking on any part of an Ad; (iii) redirect a User away from any Advertiser website, provide a version of the Advertiser website that is different from the website a User would access by going directly to the Advertiser website, intersperse any content between the Ad and the Advertiser website, or otherwise provide anything other than a direct link from an Ad to an Advertiser website; (iv) display any Ad on any error page, on any chat page or in any email; (v) directly or indirectly access, launch, and/or activate Ads through or from, or otherwise incorporate the Ads in, any software application, website, or other means other than through the Adknowledge Engage Software, and then only to the extent expressly permitted by this Agreement; (vi) “crawl,” “spider,” index or in any non-transitory manner store or cache information obtained from any Ads or Actions, or any part, copy, or derivative thereto; or (vii) spam or send unsolicited emails, notifications, invites or use any other broadcasting mechanism mentioning or promoting an Ad. Publisher acknowledges that any violation or attempted violation of any of the foregoing is a material breach of this Agreement.
   4. At the request of Adknowledge, Publisher shall cease the use of a Publisher Website in the Adknowledge Engage Publisher Program.
4. Proprietary Rights.
   1. Subject to the terms and conditions of this Agreement, Adknowledge hereby grants Publisher a limited, non-exclusive, revocable, non-sublicensable, non-transferable license during the term of this Agreement to use the Adknowledge Engage Software for the purposes set forth in this Agreement. Publisher will not copy, alter, create derivative works of, distribute, or otherwise provide or re-syndicate the Ads.
   2. As between Adknowledge and Publisher, Adknowledge, its licensors, and/or Advertisers, as applicable, own and retain all rights, title, and interest in and to the Adknowledge Engage Software and the Ads. Except as expressly stated herein, Adknowledge does not grant to Publisher any license, express or implied, to the Adknowledge Engage Software or any other right, title, or interest to any intellectual property. Any rights not expressly granted herein are deemed withheld. Publisher will not to copy, alter, modify, decompile, reverse engineer, disassemble, create derivative works of, or otherwise attempt to derive source code from the Adknowledge Engage Software or otherwise use the Adknowledge Engage Software in any way that violates the terms and conditions of this Agreement.
5. Payment.
   1. Adknowledge shall pay Publisher a payment, as determined by Adknowledge in its sole and absolute discretion, relating to the Gross Revenue (“Payment”). Payments will be determined by Adknowledge based on a number of factors which may include, without limitation, the quantity, quality, and validity of clicks on Ads, Ad impressions, and Actions, and User demographics such as the country of origin of a User’s IP address. Payments under this Agreement shall be made in U.S. Dollars. Adknowledge will provide Publisher with access to a report showing a reasonable estimate of the Payment earned by Publisher and other information as Adknowledge may determine, in its sole and absolute discretion, from time to time.
   2. Adknowledge shall pay Publisher the Payments approximately thirty (30) days after the end of every calendar month. Payments shall be made to Publisher via a payment method offered by Adknowledge for the Adknowledge Engage Publisher Program. Publisher’s payment account details may be changed by Publisher upon at least ten (10) days prior written notice to Adknowledge. Publisher is responsible for maintaining accurate and current contact information with Adknowledge including, but not limited to, payment account information. Any banking fees, wire fees, and/or other charges for services incurred in connection with the Payments shall be the sole responsibility of Publisher.
   3. Notwithstanding the foregoing, (i) Payment earnings of less than one hundred dollars ($100.00) will be held by Adknowledge until amounts due equal or exceed one hundred dollars ($100.00), and (ii) Adknowledge shall not be responsible for any delays in Payments caused by incorrect banking information or other information supplied by Publisher. Publisher shall be solely responsible for the payment of, and shall pay when due and indemnify, defend, and hold harmless Adknowledge from and against, all applicable taxes including, but not limited to, any sales, use, excise or transfer taxes and other taxes associated with Payments to Publisher under this Agreement (except for taxes assessed on Adknowledge’s net income).
   4. Notwithstanding anything else to the contrary set forth in this Agreement, Adknowledge shall have no obligation to pay Publisher any Payments with respect to (i) amounts generated based on Publisher’s breach of this Agreement, (ii) payments in respect of which Adknowledge has not itself received payments from relevant third parties including, but not limited to, Advertisers, and (iii) any fraudulent payments from Users or any fraudulent or invalid Actions or any fraudulent or invalid clicks or impressions on any Ads generated by any person, bot, automated program or similar device in connection with the Adknowledge Engage Software or any Ads provided by Adknowledge, as determined by Adknowledge, including, without limitation, any Actions, clicks or impressions (A) originating from Publisher’s IP addresses or computers under Publisher’s control, (B) solicited by payment of money, the exchange of goods or services, false representation, or request or incentive for Users to click on Ads, or any illegal or otherwise invalid request for Users to complete Actions, (C) pursuant to which Users were directly or indirectly misled or falsely encouraged to complete Actions, including without limitation making it seem that a User is completing an Action other than the Action actually being offered, (D) pursuant to which a User provided false or misleading personal data, or (E) payments which represent net adjustments downwards for whatever reason to payments made by Advertisers, or legitimately withheld from payments due from Advertisers. Publisher must notify Adknowledge in writing within thirty (30) days after receipt of a Payment if Publisher has any dispute relating to such Payment (“Payment Dispute Period”). Failure to notify Adknowledge of a dispute relating to a Payment before the end of the Payment Dispute Period shall result in a waiver by Publisher of any claim relating to such Payment.
   5. Adknowledge may withhold a relevant portion of any Payment from Publisher to offset any portion of any Payment previously received by Publisher in respect of any matter under Section 5(d) above. Publisher understands that this may reduce the Payment owed to Publisher.
   6. As a result of administrative and other costs that Adknowledge incurs in providing its services under this Agreement, in the event that the total Payment amount owed to Publisher upon termination or expiration of this Agreement is less than fifty dollars ($50.00), notwithstanding anything else set forth in this Agreement to the contrary, Publisher understands and agrees that Adknowledge is not obligated to send Publisher such Payment and that Adknowledge may retain such amount as if the same had never been the subject of any obligation to be paid by Adknowledge.
   7. Publisher understands and agrees that Adknowledge may offset from any Payment any amount owed by Publisher, or any parent, subsidiary, or affiliate of Publisher, to Adknowledge or any parent, sibling or subsidiary company of Adknowledge.
6. Termination.
   1. Termination and Suspension. Adknowledge may terminate, cancel, or suspend this Agreement at any time, for any or no reason, with or without notice to Publisher. Publisher may terminate this Agreement at any time, for any or no reason, upon notice to Adknowledge.
   2. Effect of Termination. The terms and conditions of Sections 1, 4(b), 5(b) (relating to payments owed through the date of termination or expiration of this Agreement), 5(c), 5(d), 5(e), 5(f), 5(g), 6(b), 7, and 9 through 12 of this Agreement shall survive any termination or expiration of this Agreement.
7. Confidentiality. Publisher will not use or disclose any Confidential Information except as specifically authorized herein. Publisher shall maintain the confidentiality of the Confidential Information and shall take precautions to prevent the unauthorized disclosure or use of Confidential Information. The obligations of this clause shall not apply (a) to any disclosure required by law, (b) to information that is now or subsequently becomes generally available through no act of omission of Publisher, (c) to information that is known to Publisher at the time of disclosure without obligation to maintain its confidentiality, as evidenced by written documents or records, (d) to information provided to Publisher by a third party without breach of such third party’s obligation of confidentiality, or (e) to information independently developed by Publisher without use of or reference to Confidential Information, as evidenced by written documents or records. Publisher agrees and acknowledges that Confidential Information includes, but is not limited to, Payments, reports provided by Adknowledge, and information, software, technology, documentation, and specifications relating to the Adknowledge Engage Software.
8. Representations and Warranties.
   1. Publisher hereby represents and warrants to Adknowledge that Publisher: (i) is the owner of the Publisher Websites; (ii) shall not at any time provide to Adknowledge or use in connection with the Publisher Websites or the Adknowledge Engage Software any Personally Identifiable Information; (iii) shall maintain a prominently-available privacy policy on the Publisher Websites that discloses the use of advertising technology relating to data collection and targeting activities, a description of the collection and use of User data by it and third parties, a description of the provision of User data to Adknowledge, and an easy to use “opt-out” or “unsubscribe” method for Users to opt-out of data collection; (iv) has the right, pursuant to a privacy policy prominently-available to Users on the Publisher Websites, to provide User data to Adknowledge including, without limitation, User browsing habits on the Publisher Websites, Actions on Ads by Users, and that Adknowledge has the right to collect such data; (v) has obtained and shall maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations; (vi) shall comply with all applicable privacy and data protection laws, rules, and regulations; and (vii) shall include provisions in its User terms and conditions, terms of use, or similar terms with respect to use of the Publisher Websites by Users that (A) the Users expressly agree to arbitrate disputes on an individual basis and not to participate as a plaintiff or class member in any purported class or representative proceeding, (B) the Users expressly waive any right to a court or jury trial and right to participate in a class action, with class arbitrations and class actions not being permitted, and (C) Adknowledge shall be an intended third party beneficiary to the foregoing..
   2. Publisher further represents and warrants that: (i) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which it is bound, (ii) the Publisher Websites shall not contain any viruses, worms, Trojan horses, or any other contaminating or destructive feature, (iii) the Publisher Websites shall not contain or promote any content that is illegal, pornographic, gambling-related, hate-related, abusive, false, fraudulent, deceptive, misleading, obscene, defamatory, unethical, infringing upon intellectual property rights, or any content that Adknowledge reasonably deems objectionable, and (iv) it shall comply with all applicable local, state, national and international laws, rules and regulations including, without limitation, any laws regarding the transmission of technical data exported from Publisher’s country of residence, the CAN-SPAM Act of 2003, and any relevant data protection or privacy laws.
   3. Agent represents and warrants that it has the authority as Publisher’s authorized agent to bind Publisher to this Agreement, and that all of Agent’s actions related to this Agreement will be within the scope of such agency.
9. Indemnification.
   1. Publisher shall indemnify, defend, and hold harmless Adknowledge, its parent and subsidiary companies (including representatives, successors and assigns thereof) from and against any and all claims, losses, expenses, damages, liabilities and costs, including without limitation reasonable attorneys’ fees, arising out of or relating to (i) the Publisher Websites, (ii) Publisher’s violation of any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party, (iii) any breach of this Agreement by Publisher including, but not limited to, any representation, warranty or covenant of Publisher, and (iv) Publisher’s use of the Adknowledge Engage Software, including but not limited to the Ads.
   2. Agent shall indemnify, defend, and hold harmless Adknowledge, its parent and subsidiary companies (including representatives, successors and assigns thereof) from and against any and all claims, losses, expenses, damages, liabilities and costs, including reasonable attorneys’ fees, arising out of or relating to Agent’s breach of Sections 2(c) or 8(c) of these Terms.
10. Disclaimer. ADKNOWLEDGE MAKES NO WARRANTIES OF ANY KIND (INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE ADKNOWLEDGE ENGAGE PUBLISHER PROGRAM AND THE ADKNOWLEDGE ENGAGE SOFTWARE), WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY WARRANTY OR CONDITION ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. ADKNOWLEDGE MAKES NO GUARANTEE REGARDING THE VOLUME OR TIMING OF ACTIONS IN CONNECTION WITH THE ADKNOWLEDGE ENGAGE SOFTWARE AND THE ADKNOWLEDGE ENGAGE PUBLISHER PROGRAM. ADKNOWLEDGE DOES NOT WARRANT THE RESULTS OF THE ADKNOWLEDGE ENGAGE SOFTWARE AND THE ADKNOWLEDGE ENGAGE PUBLISHER PROGRAM, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY AD CAMPAIGN, THE NUMBER, TIMING OR COMPLETION OF ACTIONS, CLICKS OR IMPRESSIONS, OR THE TOTAL AMOUNT OF ANY PAYMENT TO BE MADE TO PUBLISHER UNDER THIS AGREEMENT, AND PUBLISHER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. THE ADKNOWLEDGE ENGAGE SOFTWARE IS PROVIDED “AS-IS” AND ADKNOWLEDGE DOES NOT WARRANT THAT THE ADKNOWLEDGE ENGAGE SOFTWARE OR THE ADKNOWLEDGE ENGAGE PUBLISHER PROGRAM ARE ERROR-FREE OR THAT PUBLISHER WILL BE ABLE TO OPERATE THE ADKNOWLEDGE ENGAGE SOFTWARE OR PARTICIPATE IN THE ADKNOWLEDGE ENGAGE PUBLISHER PROGRAM WITHOUT PROBLEMS OR INTERRUPTIONS.
11. Limitation of Liability.
    1. PUBLISHER ACKNOWLEDGES AND AGREES THAT ADS MAY INCLUDE LINKS TO OTHER WEBSITES OR RESOURCES AND THAT ADKNOWLEDGE HAS NO CONTROL OVER (AND IS MERELY A PASSIVE CONDUIT WITH RESPECT TO) ANY ADS OR SUCH LINKS TO WEBSITES OR OTHER RESOURCES THAT MAY BE SUBMITTED OR PUBLISHED BY ANY ADVERTISER OR OTHER THIRD PARTY. ADKNOWLEDGE IS NOT RESPONSIBLE FOR THE AVAILABILITY OF SUCH THIRD PARTY WEBSITES OR RESOURCES AND DOES NOT ENDORSE AND IS NOT RESPONSIBLE OR LIABLE FOR ANY CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE FROM SUCH THIRD PARTY WEBSITES OR RESOURCES. PUBLISHER ACKNOWLEDGES AND AGREES THAT ADKNOWLEDGE SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH THIRD PARTY WEBSITE OR RESOURCE. ALL CORRESPONDENCE OR BUSINESS DEALINGS WITH, OR PARTICIPATION IN PROMOTIONS OF, ADVERTISERS FOUND ON OR THROUGH ANY AD, INCLUDING PAYMENT AND DELIVERY OF RELATED GOODS OR SERVICES AND ANY OTHER TERMS, CONDITIONS, WARRANTIES OR REPRESENTATIONS ASSOCIATED WITH SUCH DEALINGS, ARE SOLELY BETWEEN PUBLISHER (OR THE USERS) AND SUCH ADVERTISER.
    2. IN NO EVENT SHALL ADKNOWLEDGE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ADVERTISERS BE LIABLE FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR ADKNOWLEDGE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ADVERTISERS HAVE BEEN NOTIFIED OR HAVE CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF THEREOF AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
    3. IN THE EVENT THAT ADKNOWLEDGE IS HELD LIABLE FOR ANY REASON UNDER THIS AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY, TO THE FULLEST EXTENT PERMITTED BY LAW, OF ADKNOWLEDGE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ADVERTISERS FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF: (A) ADKNOWLEDGE’S SHARE OF REVENUE DERIVED FROM THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY; OR (B) THE ACTUAL EXPENSES INCURRED FOR ADKNOWLEDGE’S ACTION(S) OR FAILURE(S) TO ACT WHICH GAVE RISE TO THE LIABILITY.
12. General Provisions.
    1. Force Majeure. Neither party will be liable to the other for any failure of performance under this Agreement due to acts of God; acts of the public enemy; strikes, lockouts, or other industrial disturbances; fires, floods, storms, droughts, or weather conditions; war, riots or terrorist acts; or, without limitation by enumeration, any other cause beyond the reasonable control of such party.
    2. Relationship of the Parties. Adknowledge and Publisher enter into this Agreement as independent contractors, and neither Adknowledge nor Publisher shall be or construed to be a partner, joint venturer or employee of the other.
    3. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of the parties, provided that Publisher may not assign this Agreement without the prior written consent of Adknowledge. Any assignment or attempted assignment in contravention of this provision shall be null and void.
    4. Jurisdiction and Venue; Enforcement. This Agreement shall be interpreted and enforced in all respects under the laws of the State of Missouri, U.S.A., as applied to agreements performed wholly within the State of Missouri, U.S.A. Any litigation arising out of this Agreement will be brought solely and exclusively in the state or federal courts located in Kansas City, Missouri, U.S.A. and the parties agree that jurisdiction and venue properly lie in such courts. Adknowledge shall be entitled to all reasonable attorneys’ fees and costs in connection with enforcing this Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
    5. No Waiver; Amendment. No waiver by either party of one or more breaches or defaults by the other in the performance of any provision of this Agreement shall operate or be construed as a waiver of any other or further breach or default whether of a like or different character. This Agreement may not be amended by Publisher except by a written instrument specifically referencing this Agreement which has been executed by an authorized Adknowledge signatory. Adknowledge may amend this Agreement upon notice to Publisher, including through posting on the Adknowledge website or email notification to Publisher. Publisher’s continued use of the Adknowledge Engage Software after such notice will constitute Publisher’s acceptance of such amendment.
    6. Severability. In the event any provision of this Agreement is declared to be void or unenforceable in whole or part, the other provisions of this Agreement and the remainder of the affected provisions shall continue to be valid; provided, however, that a court having jurisdiction may revise such provision to the extent necessary to make such provision valid and enforceable consistent with the intention of the parties.
    7. Entire Agreement; Notices. This Agreement supersedes and excludes any prior agreements, representations, warranties or contracts between the parties relating to the subject matter hereof and contains all of the agreements of the parties with respect to the subject matter hereof. Any and all prior agreements, representations, statements, warranties or contracts relating to such subject matter shall be deemed conclusively to have been merged herein. In case of any conflict between these terms and any policies provided by Adknowledge relating to Publisher’s use of the Adknowledge Engage Software or participation in the Adknowledge Engage Publisher Program (“Policies”), these Terms shall govern and control over the Policies to the extent of the conflict. Notices to Adknowledge under this Agreement shall be transmitted via overnight courier to Adknowledge, Inc., Attention: General Counsel, 4600 Madison Avenue, 10th Floor, Kansas City, MO, 64112, U.S.A.
    8. Section Headings. Section headings are purely for ease of reference and do not form part of or affect the interpretation of this Agreement.