Date: December 13, 2024
These Terms and Conditions (the “T&Cs”) amend, supersede and replace entirely the previous terms and conditions dated 11/22/2023 located at https://nextmillennium.io/terms-and-conditions/ and shall apply to any use of or participation in the Next Millennium Media, Inc., or its affiliates’, divisions’ or subsidiaries’ (“we”, “us”, “our”, or “Next Millennium,” “Next Millennium Media,” “NMM”) advertisement publishing services, and any other services that we own, control and make available to Publisher (collectively “Services” or “the Services”).
These T&Cs constitute a binding agreement between the entity using or seeking to use the Services (including, if applicable, any of its affiliates included in the scope of its purchase) and identified in Insertion Order(s) which reference(s) these T&Cs as “Publisher Name,” or if entity has no such Insertion Order(s), then identified as the “Customer” in their Account(s) (“You,” or “Publisher”) and Next Millennium (on behalf of itself and its affiliates, divisions or subsidiaries) when such entity and Next Millennium execute an Insertion Order which references these T&Cs for the first time on or after the above date, or if entity has no related Insertion Order(s), when such entity registers or re-registers an Account or has their account re-activated for the first time on or after the above date (“Effective Date”).
Alternatively, if these T&Cs had ever been in effect between the entity using or seeking to use the Services and identified in Insertion Order(s) which reference(s) these T&Cs as “Publisher Name,” or if entity has no such Insertion Order(s), then identified as the “Customer” in their Account(s) (“You,” or “Publisher”) and Next Millennium and then these T&Cs were terminated for any reason (and have not yet been put back into effect), these T&Cs shall again constitute a binding agreement between the entity using or seeking to use the Services (including, if applicable, any of its affiliates included in the scope of its purchase) and identified Insertion Order(s) which reference(s) these T&Cs as “Publisher Name,” or if entity has no related Insertion Order(s), then identified as the “Customer” in their Account(s) (“You,” or “Publisher”) and Next Millennium (on behalf of itself and its affiliates, divisions or subsidiaries) when such entity and Next Millennium next execute an Insertion Order (New Insertion Order) which reference(s) these T&Cs after such termination, or if entity has no such related New Insertion Order, when entity first re-registers or re-activates an Account after such termination (“Effective Date”).
Next Millennium may, at its sole discretion, amend these T&Cs, from time to time, by displaying the amended version(s) of the same on the Terms and Conditions section of our website, with or without prior notice. If the Publisher is not otherwise bound to those amended T&Cs, then any continued use of the Services by the Publisher after the amended T&Cs have been so displayed shall be deemed as the Publisher’s agreement to be bound by such amended T&Cs as “Publisher” therein.
In the case where a previous version of the T&Cs stated that the “Publisher” therein consents to these amended T&Cs by continued use of the Services, and such entity is not otherwise bound to these T&Cs, the “Publisher” in those previous T&Cs shall be the “Publisher” in these T&Cs and shall be bound by these T&Cs by continued use of the Services.
If any entity is not otherwise bound to these T&Cs, but uses the Services as a publisher, the use of such Services shall be deemed their agreement to be bound by these T&Cs as “Publisher”.
Publisher consents to our collection, use and disclosure practices, and other activities as described in our Privacy Notice located at https://nextmillennium.com/privacy-notice/. Publisher agrees that previous versions of our Privacy Notice (aka “Privacy Policy”) are no longer in effect and do not necessarily represent our collection, use and disclosure practices, and other activities described therein, and notwithstanding anything else in the Agreement or any Insertion Orders related to these T&Cs, Next Millennium shall have no liability whatsoever for any claim whatsoever related to Publisher’s reliance thereon. If Publisher does not agree and consent, then Publisher must discontinue use of the Services. Publisher agrees that if any terms or conditions in any agreement(s) between the Parties conflicts with any practices, activities, promises or statements of any kind in the Privacy Notice, the terms and conditions of such agreement(s) shall govern.
The Next Millennium Media Publisher Data Processing Agreement (“DPA”) located at https://nextmillennium.com/data-processing-agreement/ and dated December 13, 2024 including any of its incorporated terms or agreements, attachments, exhibits, annexes, standard contractual clauses and appendices, are hereby incorporated into these T&Cs, and all of which together shall hereinafter be collectively referred to as “the Agreement,” “this Agreement,” or “Agreement.”
This Agreement terminates all previous agreements (including previous versions of the T&Cs and any and all of its/their incorporated terms or agreements, attachments, exhibits, annexes, addendums, standard contractual clauses and appendices) between the Parties with the exception of any active Insertion Orders executed prior to the Agreement coming into effect (“Old Insertion Orders”), which, notwithstanding anything else in the Agreement to the contrary, shall remain in effect along with any agreements and any other items referenced in such Old Insertion Orders. However, the agreements and any other items referenced in such Old Insertion Orders shall apply only to matters related to the performance or use of Services in scope of such Old Insertion Orders. For the sake of clarity, this Agreement does not apply to Old Insertion Orders.
The Publisher and Next Millennium shall collectively be referred to as the “Parties” and individually as the “Party.”
Section I: Definitions
Unless stated otherwise, these definitions apply only to these T&Cs. Similar terms in other agreements between the parties (including the Next Millennium Media Publisher Data Processing Agreement) have the meaning defined in those respective agreements, or are meant to be undefined within those agreements and shouldn’t necessarily be understood to mean the same thing as similar terms defined in other agreements
“AdTech Ecosystem” means the digital marketplace that Next Millennium and Publisher are a part of which connects software, tools, and platforms used to buy, sell, and manage digital advertising. The AdTech Ecosystem is composed of Advertisers, Ad Agencies, Demand Side Platforms (DSPs), Data Management Platforms (DMPs), Ad Exchanges, Supply Side Platforms (SSPs), Ad Servers, and Publishers among possible other entities.
“Advertisements” means graphical, digital, interactive, and rich forms of media advertisements (including but not limited to banners, buttons, boxes, skyscrapers, and any other Standard IAB Units, text, brand wraps and surveys, skins, podcasts, videos, etc.) of an Advertiser, Advertiser’s agent or other entity in the AdTech Ecosystem, published on the Publisher Site(s) in accordance with the Services.
“Advertiser” means any authorized entity (such entity may be Next Millennium itself, from time to time) directly or indirectly utilizing our Services for the purposes of having its Advertisements published on the Publisher Site(s).
“Advertiser Materials” means any Advertisements, intellectual property, and any other information or materials of an Advertiser.
“Confidential Information” means intellectual property, trade secret information, proprietary business plans and methods, computer system architecture and network configurations, and any other information provided to, or created by, a Party that such Party would reasonably want to be kept secret, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of a recipient Party; (b) was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by the recipient Party prior to receiving it from the other Party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by the recipient Party.
“End User” means an individual who accesses Publisher Site.
“Insertion Order” or “IO” shall mean an insertion order form that was issued by Next Millennium, and specifies terms that Next Millennium and the Publisher have agreed to.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Publisher Content” means Publisher’s intellectual property and any content, text, photographs, images, video, music, site access, materials, or other information that Publisher or a User posts to any part of the Service or provides to Next Millennium (with the exclusion of “Feedback” as defined below), which Next Millennium has identified as necessary to enable Next Millennium to perform the Services.
“Publisher Site” means website(s) or application(s) provided by the Publisher on which the Advertisements shall run.
“Supply Side Platform Customers” Supply Side Platform Customers may not necessarily be Supply Side Platforms as those entities are defined in the AdTech industry. Supply Side Platform Customers may be any kind of entity that is a customer of Next Millennium Media and who are in contract with Next Millennium to bid on ad space, and/or supply Advertisements for the Publisher’s website or application.
“User” shall mean any of Publisher’s employees, contractors or consultants, its affiliates, and their respective employees, contractors or consultants. Users must use the Services for Publisher’s and its affiliates’ internal business purposes only and no other purpose, and Publisher is responsible for such Users’ use of the Services in accordance with the Agreement.
Section II: Publisher Responsibilities
Publisher must register for a unique Next Millennium Media online account (“Account”) to use the Services. Publisher shall register for an Account by providing all requisite information in the prescribed form(s) available on our website. Publisher shall not register for more than one Account without express, written permission from Next Millennium. Use of the Services is subject to Next Millennium’s prior approval. Next Millennium reserves the right at its sole discretion to accept, reject, or terminate an Account for any reason. To be eligible to continue to use the Services after a rejection or termination of an Account, the Publisher must remain in compliance with the Agreement.
A Publisher’s Account registration, re-registration or re-activation, or signing of Insertion Order(s) related to these T&Cs at or after the date first written above, or continued use of the Services after the date first written above constitutes an acknowledgement that they were and are able to electronically receive, view, and print the Agreement, and such Insertion Order(s) (if any), and any amendments to thereto.
Publisher acknowledges that Publisher Account(s), shall at all times be subject to verification. The Publisher authorizes Next Millennium to, directly or through third parties, make any and all inquiries necessary to validate the Publisher’s identity and confirm Publisher’s ownership of their email address or financial accounts, subject to applicable law. When requested, Publisher must provide Next Millennium with information required for verification. If a Publisher’s Account remains dormant for a period of 180 days, any remaining balance connected to such dormant Account shall be deemed an unclaimed balance and shall be surrendered to Next Millennium.
Publisher represents and warrants that:
Further, Publisher (including, without limitation, its Users) will not, and will not permit any third party to: (a) access or use the Services except as permitted hereunder; (b) use the Services as a service bureau or otherwise for the benefit of a third party; (c) rent, lease, loan or otherwise in any manner provide or distribute the Services or any copy thereof to any third party; (d) misappropriate any data or information from the Services; (e) disrupt the functioning of the Services; (f) act in a manner that interferes with Next Millennium’s operation of the Services or with the use of the Services by others; (g) gain or grant any unauthorized access to the Services; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Services or any security technology, software, or rights management information contained within the Services or any software used to enable the Services; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Services; (j) access or use the Services to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (k) exploit the Services in any unauthorized way whatsoever, including, without limitation, by trespass or burdening server or network capacity or Services infrastructure (including, but not limited to, transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or Services infrastructure); (l) or attempt, or encourage or assist any third party to do any of the foregoing.
Publisher is responsible and liable to Next Millennium for all activity that occurs through or in connection with Publisher’s Account(s), regardless of whether such is authorized by Publisher or not. This shall include any and all instructions given to or payments made to Next Millennium through Publisher’s Account(s). Publisher shall take reasonable precautionary measures to protect any Account credentials. If Publisher becomes aware of the unauthorized acquisition or use of such credentials, or any authorized access to Publisher’s Account(s), Publisher must inform Next Millennium immediately.
Publisher shall be solely responsible for any and all acts and omissions of Publisher’s Users and for any actions taken through Publisher’ Account(s) whether authorized or not. The Publisher will require any and all Users to comply with the applicable terms of this Agreement.
Section III: Provision of the Next Millennium Services
A. NEXT MILLENNIUM SERVICES – Provided that the Publisher is in material compliance with this Agreement, Next Millennium shall provide the Publisher with the following:B. INSERTION ORDERS – Upon receiving an Insertion Order that references these T&Cs, if the terms of such Insertion Order are acceptable to the Publisher, Publisher, or a User on Publisher’s behalf, shall accept the Insertion Order in accordance with the manner specified therein. Once accepted, the Publisher shall be bound to the terms of the Insertion Order and the Agreement. The Insertion Order shall contain any applicable corresponding fees, or payment terms.
C. ADVERTISER MATERIALS – Next Millennium shall ensure that Supply Side Platform Customers grant Next Millennium and the Publisher a limited, non-exclusive, non-sublicenseable, non-transferrable, revocable right to use and display the Advertiser Materials as necessary solely for the performance and acceptance of the Services. The Publisher hereby acknowledges and agrees that the owner of the Advertiser Materials reserves all other rights and interests, including, without limitation, all Intellectual Property Rights, in and to the Advertiser Materials. This license continues until it is terminated by either Party; provided, however, that a termination of this license does not, in and of itself, terminate any other agreement between the Parties, including, without limitation, payment obligations.
D. Media Kits and Marketing –Publisher expressly authorizes Next Millennium, at Next Millennium’s sole discretion, to create a media kit specifically for Next Millennium’s use with its customers and potential customers, including hosting the media kit on a domain name that is substantially similar to the Publisher’s business name. Publisher hereby grants Next Millennium a limited non-exclusive, revocable right to use and display Publisher’s trade names and logos on Next Millennium’s websites and internal documents. Nothing in this Agreement requires Next Millennium to create such media kit. Publisher also expressly authorizes Next Millennium to communicate directly with entities who directly or indirectly use the Publisher’s website or service to market the products and services of Next Millennium, or in connection with the performance of the Services.
E. THIRD PARTY LINKS; APPLICATIONS; AND FUNCTIONALITIES– The Services may contain links to third-party websites. The Services may also contain applications that allow the Publisher to access third-party websites via the Services. Such third-party websites are owned and operated by the third parties and/or their licensors. Next Millennium does not warrant or guarantee access and use of third-party websites, including online communication services, such as chat, email, and calls. Publisher’s use of third-party websites will be governed by the terms and policies of the applicable third-party websites. The Publisher hereby acknowledges and agrees that Next Millennium is not responsible or liable for the availability or accuracy of third-party websites, or the content, advertising, or products on or available from third-party websites. The Publisher shall access third-party websites by clicking on a link, or installing an application at the Publisher’s sole risk and discretion.
To the extent that third party services are offered through and/or incorporated into the Services (“Third Party Services”), Client acknowledges that all Third Party Services will remain the sole and exclusive property of the respective third party (for example, Google) and Publisher agrees, represents, and warrants that its use of the Third Party Services will be consistent with the terms of the applicable third party licenses. In the event that Next Millennium needs to use or activate Third Party Services as part of the Services, including without limitation, where such activity requires the acceptance of an end user license agreement (or any similar terms whatsoever), Next Millennium may activate such Third Party Services on Publisher’s behalf. Publisher hereby authorizes Next Millennium to accept such terms on Publisher’s behalf and acknowledges that Publisher shall be bound by and adhere to such terms.
F. SERVICE UPDATES– The parties agree that Next Millennium may, from time to time, in its sole discretion, without notice to Publisher, develop and provide Services updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. The Publisher hereby agrees that Next Millennium does not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. The Publisher shall promptly download and install all Updates and acknowledges and agrees that Services or portions thereof may not work properly without such Updates. The Publisher further agrees that all Updates and their use will be subject to the terms of the Agreement and any Insertion Order(s) related to these T&Cs (if there are any such Insertion Orders), unless otherwise provided in terms associated with such Update. Next Millennium reserves the right, at any time, to modify the Services, or entirely suspend, or discontinue the Services or any part thereof without notice, and the Publisher hereby agrees Next Millennium shall not be liable to the Publisher or any third party for such modification, suspension, or discontinuance.
Section IV: Payments
A. PAYMENT TERMS
D. TAXES
Next Millennium may be required by federal and state law to collect certain tax withholding information for all publishers. Publisher must submit this information upon activation of their Account with Next Millennium. The accuracy and completeness of the tax information provided is the sole responsibility of the Publisher. No payments will be made to the Publisher until all required tax or other information has been provided. The Publisher shall pay all taxes (including excise, sales, use, consumption, value-added or withholding taxes), customs or import duties, or any other levies, tariffs, duties or governmental fees that are due or payable in connection with the Agreement (“Taxes”). Each party agrees to cooperate in good faith with respect to reasonable requests from the other party regarding Tax-related forms, documentation or other information relating to this Agreement that may be necessary or appropriate.
Next Millennium reserves the right without prior notice to the Publisher to debit any bank accounts connected to the Publisher’s Account for any expenses, fees, Taxes, costs, service charges or expenses arising out of any transactions or operation of the Services as may be payable to a government, or any regulatory authority as may be levied, from time to time. If Next Millennium is unable to debit the required amount from such bank account(s) associated with Publisher’s Account, Next Millennium reserves the right to recover the required amount in a manner as Next Millennium may deem fit along with applicable interest charges, if any, without any liability to Next Millennium.
Section V: Relationship with Next Millennium
Next Millennium is under no obligation to introduce Advertisers or supply side platforms or any other entities to Publisher or help Advertisers or supply side platforms or any other entities find Publishers. Next Millennium makes no representations about, and does not guarantee or warrant the quality, truth, accuracy, qualifications, safety, or legality of, the Advertisement(s), the Advertiser Materials, the qualifications, background or identities of Advertisers or any other entities in the Ad Tech Ecosystem. Next Millennium makes no representations or guarantees about the ability of an Advertiser (or Advertiser’s agent) or Supply Side Platform Customer or any other entities to pay the fees for the Services or that it will perform background checks on the Advertisers or Supply Side Platforms Customers or any other entities. The Publisher hereby acknowledges and agrees that any information on the Services and/or any Insertion Order related to these T&Cs about an Advertiser, Supply Side Platform Customer, publisher or other entity, including without limitation, feedback, composite feedback, strength or risk score, or geographical location is based solely on data that Advertisers, Supply Side Platform Customers, publishers and other entities voluntarily submit to Next Millennium, and shall not constitute nor be construed as an endorsement, verification, testimonial, or recommendation by Next Millennium. The Parties hereto are independent contractors and Publisher’s execution of this Agreement and/or any Insertion Order(s) and/or the registration or any Account and/or use of the Services will not be construed as creating or implying any relationship of agency, franchise, partnership, employment, or joint venture between Publisher and Next Millennium.
A. LICENSE AND INTELLECTUAL PROPERTY RIGHTS – Next Millennium grants to the Publisher a limited non-exclusive, non-sublicenseable, non-transferrable, revocable license to access and use the Services. The Publisher shall only access (or attempt to access) the Services by the interface(s) provided, and shall not use information from the Services for any purposes other than the purposes for which it was made available. Next Millennium and its licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Services. The Next Millennium logos and names are trademarks of Next Millennium and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Agreement or Insertion Order(s) related to these T&Cs confers any license to any of Next Millennium’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
B. PUBLISHER CONTENT LICENSE – The Publisher grants Next Millennium a limited, non-exclusive, revocable right to use and display the Publisher Content as necessary solely for the performance of the Services. Publisher reserves all other rights and interest in and to the Publisher Content. Upon Publisher’s written request, Next Millennium shall immediately return all Publisher Content to Publisher, and if requested, Next Millennium further agrees to destroy all copies of Publisher Content contained in or on Next Millennium’s premises, systems, or any other equipment or location otherwise under Next Millennium’s actual and/or constructive control, in accordance with any specific instructions as may be issued by the Publisher. For any Publisher Content posted on or through the Services, whether directly by a User or indirectly by Publisher providing Next Millennium with Publisher Content which is then posted, the Publisher represents and warrants that it has the right, power, and authority to post the same and grants the requisite licenses to Next Millennium, and that such Publisher Content shall not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, or privacy rights. To the extent Publisher’s Publisher Content may be copyrighted, the Publisher represents, warrants, and covenants that the Publisher is the owner of all the copyright rights to such Publisher Content. The Publisher shall retain all ownership rights in any Publisher Content it posts on the Services. The licenses to Publisher Content granted by Publisher in this Agreement shall terminate within a commercially reasonable time after Publisher Content is removed or deleted from the Service. The Publisher may submit comments, feedback, or ideas about the Services (including without limitation feedback and suggestions about how to improve the Services), and regarding Advertisers or Advertiser Materials (collectively, “Feedback”). By submitting any Feedback, the Publisher agrees that: (a) disclosure of Feedback is voluntary, gratuitous, unsolicited, and assigned to Next Millennium without restriction and shall not place Next Millennium under any fiduciary or other obligation, (b) the Feedback does not contain the confidential or proprietary information of third parties, and (c) Next Millennium is free to use the Feedback without any additional compensation to the Publisher and to disclose the Feedback on a non-confidential basis to anyone. The Publisher further acknowledges and agrees that, by accepting any of its Feedback, Next Millennium does not waive any rights to use similar or related ideas or feedback known or developed by Next Millennium or obtained from sources other than the Publisher.
C. Privacy; Data Use – Publisher represents and warrants that Publisher will comply with all applicable laws and regulations, including, without limitation, the California Consumer Privacy Act (CCPA), the General Data Protection Regulation (GDPR), any applicable regulatory requirements and guidance. Additionally, Publisher shall comply with all self-regulatory mechanisms including the rules, codes and guidelines of the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI). The Publisher agrees that it shall provide any and all required privacy notices to End Users of Publisher websites or applications and obtain and store any required user consent or revocation of consent on behalf of itself, Next Millennium and all applicable partners or affiliates, or other interested entities in the Ad Tech Ecosystem. The Publisher further agrees that it must transmit all records of consent or revocations of consent to Next Millennium. The Publisher’s privacy notice shall contain all legally required information, and shall address, inter alia, (a) the sharing of personal information, geo location, and user device identification of its End Users with Next Millennium, and (b) first- and third-party cookies. Next Millennium shall own all right and title to any data that Next Millennium takes efforts to reasonably de-identify and aggregate, and Next Millennium may use such de-identified and aggregated data to the maximum extent allowed by law.
Section VI: Confidentiality
Section VII : Warranties, Limitation on Liability, And Indemnities
Section VIII : Suspension; Term and Termination; Survival
A. SUSPENSION; TERM AND TERMINATIONB. SURVIVAL – After the Agreement terminates, the terms of the Agreement that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after the Agreement terminates.
Section IX : Dispute Resolution/Arbitration
A. DISPUTE VENUE; PROCESS; AND SCOPEThis Agreement and all matters arising out of or in connection with it and/or with Insertion Orders related to these T&Cs shall be construed and enforced in accordance with, and governed by, the substantive laws of the State of New York, United States of America, without regard to the conflict of laws principles thereof. The parties hereby expressly submit to the exclusive jurisdiction of the federal and state courts located in the City, County and State of New York for resolution of all disputes arising under the terms of or in connection with this Agreement and/or Insertion Orders related to these T&Cs (including non-contractual claims) and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. In any action or proceeding to enforce rights under this Agreement or any Insertion Orders related to these T&Cs, the prevailing party will be entitled to recover costs and attorneys’ fees. Next Millennium, in its sole discretion, shall have the right to seek a preliminary, interim or preventative injunction in respect of any breach of its Intellectual Property rights in any jurisdiction and court. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or any Insertion Orders related to these T&Cs or the breach thereof (collectively “Dispute”), the Parties shall use their best efforts to settle the Dispute. Such efforts will include, at a minimum, that they consult and negotiate with each other in good faith, and recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. If the Parties do not resolve the Dispute pursuant to the foregoing paragraph within a period of 30 days, then, upon notice by either Party to the other, the Parties agree to mediate the Dispute in good faith according to the American Arbitration Association’s Commercial Mediation Procedures in New York City or another location mutually agreeable to the Parties. The Parties shall work in good faith with the mediator to attempt to complete the mediation within 30 days of such notice. If the Parties do not resolve the Dispute through mediation within the 30 days, then, upon written notice by either Party to the other, the Dispute shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. The arbitration shall be conducted on a confidential basis before a single arbitrator mutually agreed to by the Parties. The arbitrator shall be experienced in contract and technology law. The arbitrator shall issue a written decision or award which provides an explanation for all conclusions of law and fact. The arbitration shall be conducted in New York City or another location if mutually agreeable to the Parties. An award of arbitration may be confirmed in a court of competent jurisdiction. The arbitrator may award any prevailing Party on a claim or defense some or all of its reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, out-of-pocket expenses such as copying and telephone, witness fees, and attorneys’ fees subject to any limitations of liability specified elsewhere in the Agreement.
EACH OF THE PARTIES HERETO HEREBY EXPRESSLY ACKNOWLEDGES THAT ANY DISPUTE ARISING OUT OF, CONNECTED WITH, OR INCIDENTAL TO THE RELATIONSHIPS ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT WILL BE A HIGHLY COMPLEX COMMERCIAL MATTER INAPPROPRIATE FOR RESOLUTION BY A JURY. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY SUCH DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
Section X: General Provisions
All notices to Publisher intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the “Address” (or “Notice Address”) provided in their latest executed Insertion Order, or if no Insertion Order exists, then to the notice address stated in their Next Millennium Publisher Account; or (c) in writing via email to all email address(es) provided in their latest executed Insertion Order, or if no Insertion Order exists, then to the email address stated in their Next Millennium Publisher Account, and shall be deemed effective upon receipt by Publisher.
