This Publisher Services Agreement (this “Agreement”) is a legal agreement between You (“You,” “Your” or “Publisher”) and the applicable GumGum entity (“Company”) concerning Company’s performance of certain advertising services, which are referred to in this Agreement and defined below as “Services.” Company may be GumGum, Inc. or any of its affiliate. The applicable GumGum entity shall be the one set forth in the order form, insertion order, acceptance prompt or other transaction document signed or accepted by You. Notwithstanding anything herein to the contrary, if You have an existing agreement with GumGum, Inc. or one of its direct or indirect subsidiaries, the contracting parties will remain unchanged but will be referred to herein as Company. Further, the governing law as set forth in such agreement will also remain in full force and effect, notwithstanding Section 10.3 below.
By clicking on the “Accept” or similar button for this Agreement or registering for Services, You are indicating acceptance of this Agreement by You and, if applicable, the business entity on whose behalf You receive Services and signify Your agreement to be bound by the terms and conditions of this Agreement. This Agreement shall come into force and effect as of the Effective Date. The Effective Date shall be: (i) date in which you click to accept these terms, or (ii) the date set forth in the transaction document referencing this Agreement.
If You are receiving Services on behalf of an entity, such as Your employer or a client, You represent that You have the authority to bind such company to this Agreement. If You do not agree with all of the terms and conditions of this Agreement, please do not accept or register for the Services. In such event, Company shall have no obligations to You hereunder.
Company may amend this Agreement at any time without notice. Any additional or different terms in this Agreement shall be effective upon such terms being posted on this page of Company’s website located at https://gumgum.com/terms-and-policies/publisher-services-agreement. Your continued receipt of Services and/or acceptance of payment from Company following the posting of any additional or different terms in this Agreement constitutes Your irrevocable acceptance of those additional or different terms.
This Agreement constitutes the entire agreement between You and Company with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof.
1.1 Access to Services. Subject to the terms and conditions of this Agreement and any policies established by Company, from time to time, incorporated by reference in this Agreement, Company shall (a) provide on each Publisher website, digital ad services to Publisher and its affiliates, including commercial or promotional messages, images, html links, banners, video or any other digital advertising (“Services”) on websites, content and media owned, controlled and/or made available by or on behalf of Publisher and its affiliates (“Publisher Inventory). Publisher hereby grants to Company a revocable, royalty-free, non-exclusive, non-transferable, non-sublicensable, non-assignable right to sell Publisher Inventory for the display of advertising and creative content, including all accompanying code and integration procedures necessary for Company to provide Services.
Reservation of Rights. As between the Parties, Company retains all right, title and interest in and to the Company Materials (as defined in Section 2.1), and except for the limited rights and licenses granted to Publisher pursuant to this Agreement, nothing shall be construed to restrict, impair, encumber, license, alter, deprive or adversely affect the Company Materials or any of Company’s rights or interests therein or any other Company intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials or rights, tangible or intangible.
1.2 Publisher’s Account. Shortly after the Effective Date Company will provide Publisher a password for accessing its account. During the Term (defined below), Publisher will have access to a Web-based control panel to manage Publisher’s account, including specifying from time to time the Services that Publisher elects to receive and those Services that Publisher elects not to receive, and other relevant details applicable to the Services (the “Portal”). Publisher is solely responsible for maintaining the confidentiality of its account password and for all activities that occur through the use of Publisher’s account. Publisher shall immediately notify Company of any unauthorized use of the password or Publisher’s account. Company will not be liable for any loss or damage arising from Publisher’s failure to maintain the confidentiality of its account password.
Ads.Txt Functionality. Publisher shall designate Company as an authorized seller of Publisher’s advertising inventory by adding Company’s designated “ads.txt” code to the “ads.txt” file on Publisher’s root domain. The Company “ads.txt” code shall be made available to Publisher or is available to Publisher upon request. Company may require Publisher to update the Company Ads.txt Code from time to time during the Term of the Agreement, and Publisher agrees to reasonably comply with Company’s requests to do so.
2.1 Ownership. As between the Parties, Company owns all right, title and interest in and to, and all intellectual property rights or licenses embodied in, its dashboard and platform, the Portal, materials and other proprietary information and technology owned, controlled or used by Company and its affiliates, including future developments and enhancements and customizations made available to Publisher, in connection with the Services, including any and all improvements, updates and modifications thereto (collectively, the “Company Materials”). Any feedback, comments or suggestions provided by Publisher regarding the Services are entirely voluntary, and Publisher grants to Company all rights to use, disclose, reproduce, license or otherwise distribute, and exploit such feedback, comments or suggestions as it sees fit, entirely without obligation or restriction of any kind, on account of intellectual property rights or otherwise (collectively, " Company’s Proprietary Rights”). Publisher agrees that it will not take any action, nor permit any third party under its control to take any action, which is or could be construed by a reasonable person as detrimental, damaging or inconsistent with the rights of Publisher, including disassembling, cloning, decompiling, altering or reverse engineering the Company Materials. Publisher retains all right, title and interest, including all intellectual property rights and proprietary rights recognized anywhere in the world, in and to Publisher Inventory including, without limitation, all content on or available through Publisher Inventory. Publisher hereby grants Company a nonexclusive license during the Term to use Publisher’s trademarks and logos solely in connection with exercising the foregoing right.
3.1 Sale of Advertising. During the Term, Publisher hereby grants Company the non-exclusive right to sell advertising inventory on all Publisher Inventory for the insertion of advertising content, including, but not limited to, commercial or promotional messages, images, html links, banners, video or any other digital advertising materials (“Ad Content”) to be selected and agreed upon by Company and Publisher and as set forth in the Portal.
Company is solely responsible for, and has final authority on, decisions related to how to sell Publisher Inventory through the Services, including packaging, pricing, promotional offers, and all other related deal terms.
3.2 Ad Refresh. Publisher shall only load new Ad Content under one of the following conditions:
Publisher shall not refresh an ad unit more than twenty (20) times per user session.
3.3 Prohibited Content. Except as otherwise specifically permitted by Company in writing, Publisher shall ensure that any page of Publisher Inventory for which Company is providing placement of Ad Content pursuant to this Agreement does not contain or promote content included on Company’s written list of prohibited content (e.g., violent content, sexual content, disaster content, illegal drugs/activities, obscenity, hate speech, content promoting or containing malware, or piracy of third-party material), as further set forth at: https://gumgum.com/terms-and-policies/buyer-policy (“Prohibited Content”).
Periodic Review of Ad Content. Company may periodically review Ad Content to ensure on-going compliance with submission requirements. If Company believes, in its sole discretion, that any Ad Content is non-compliant with such submission requirements or damages the integrity of the Services, it reserves the right to (a) remove any such Ad Content, and/or (b) suspend and/or terminate the Services. Company’s right to review Ad Content shall in no way obligate Company to review Ad Content submitted to, or through, the Services and will not be liable to Company or to any third party for failure to do so.
4.1 Integration: Server-to-Server and Header Bidding. The winning bid will be determined by an auction mechanism which evaluates bids placed on or through the third-party real-time bidding platform (“RTB Platform”). In the event that Company submits the winning bid for each bid request through the RTB Platform for the Publisher Inventory, Company shall be the winning bidder (“Winning Bidder”). By placing a bid on or through the RTB Platform, Company agrees to pay the bid price for the impressions if it is determined to be the Winning Bidder (the “Bid Price”). Notwithstanding anything to the contrary herein, the Bid Price is exclusive of applicable taxes or other governmental fees, levies or duties, which, if applicable, shall be paid by Company. For each bid request for which Company is the Winning Bidder, Publisher will permit the Ad Content to be delivered to the Publisher Inventory, subject to the terms and conditions herein. Company reserves the right to reject or refuse to run any Ad Content on any page of Publisher’s Inventory at any time if it determines that any such page does not comply with Company’s Prohibited Content Guidelines, as defined in Section 3 above or would otherwise be inappropriate or damaging to Company.
4.2 Payments: Reporting.
4.2.1 Server-to-Server. Company will track delivery through its ad server and, at the end of each calendar month during the Term, Company will provide reports to Publisher of the advertising delivered in connection with the Advertising Inventory for which Company was the Winning Bidder.
4.2.2 Standard Ad Server. If Publisher elects Company’s standard Ad server integrations, and subject to Publisher’s compliance with all of the terms and conditions of this Agreement, Publisher will be entitled to receive a payment based upon Company’s measurements of the revenue that Company receives from the placement of Ad Content.
4.2.3 Reporting. Publisher acknowledges and agrees that Company’s Ad server shall be the controlling measurement for purposes of determining the number of impressions of Ad Content delivered hereunder; provided however, if the difference between Company’s and Publisher’s measurements differ by more than ten percent (10%), the parties will cooperate in good faith to reconcile the discrepancy. Through the Portal, Publisher will be able to access reports setting forth the total number of impressions of Ad Content for which Company was the Winning Bidder, and the Bid Price(s) payable for such impressions. Company shall pay to Publisher the fee within 60 (sixty) days after the end of the month for which the fee is reported, provided that the earned balance is USD $50 or more.
Company reserves the right to withhold payment of, or charge back Publisher’s account, amounts corresponding to Served Ads that Company has a reasonable belief that it has no payment obligation hereunder due to any of the foregoing circumstances, pending Company’s investigation thereof or any breach of this Agreement by Publisher. To ensure proper payment, Publisher is solely responsible for providing and maintaining an accurate address and contact information, as well as payment information associated with Publisher’s account.
If Publisher disputes the amount of any payment made under this Agreement, Publisher must notify GumGum in writing of such payment dispute within ninety (90) days following the date such payment was received; failure to timely notify GumGum of a payment dispute shall result in Publisher’s waiver of any claim relating to payable amounts corresponding to the Served Ads for which the disputed payment was made. Amounts payable by GumGum hereunder shall be calculated solely based on data and records maintained by GumGum. No other data, measurements or statistics of any kind shall be accepted by GumGum or have any effect under this Agreement. Publisher’s right to receive payments made under this Agreement may not be transferred or in any manner passed on to any third party unless expressly permitted in this Agreement or authorized in writing by GumGum in advance (such authorization may be given by email).
4.2.4 Bid Exchange Program. In the event that Publisher registers under an exchange bidding program conducted by a third party such as Google or Amazon (“Program Operator”), Publisher shall not receive payment from Company for Services associated with such program. Any payment shall be made directly by Program Operator to Publisher in accordance with such agreement as may be applicable between Publisher and Program Operator. Company shall have no payment obligation to Publisher pursuant to the foregoing.
4.3 Taxes. As between Company and Publisher, Publisher agrees to pay all taxes, including sales, use, excise, purchase, goods and/or services, value-added and other taxes levied against, imposed upon or otherwise arising in connection with the provision of the Services, exclusive, however, of taxes based on Company’s income and taxes associated with its personnel, which taxes shall be paid by Company. If any tax for which Publisher is responsible is paid by Company, Publisher shall promptly reimburse Company upon proof of payment, including any associated interest or penalties thereon.
5.1 Confidential Information. “Confidential Information” means all data, information, documents, software or materials relating to the other party, or its partners, shareholders, affiliates, licensors, licensees or advertisers, that is designated as confidential or that a reasonable person would consider to be confidential including, but not limited to, plans, software, technology, programming, specifications, materials, guidelines, processes, products, designs, pricing, promotions, finances, research, development, know-how and trade secrets. Confidential Information shall not include any information that (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party, (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality, (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information, or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure. For the avoidance of doubt, the terms of this Agreement are Confidential Information. Except as required by law, neither party shall disclose the terms of this Agreement to any third party without the other party’s prior written consent, provided, however, that a party may disclose the terms of this Agreement to its financial and legal advisors or to a potential investor or purchaser under a duty of confidentiality in connection with a contemplated transaction involving such party, provided, that such investor or purchaser is not a competitor of the other party
Recipients; Equitable Relief. Each party shall, in advance, ensure that each individual who obtains or is in a position to obtain Confidential Information of the other party, understands and has agreed to comply with the obligations in this Article 5. Further, in the event of a breach or threatened breach of either party’s obligations in this Article 5, the other party shall suffer immediate and irreparable harm for which money damages may be difficult to calculate and/or provide inadequate compensation. Accordingly, either party shall be entitled to an injunction, restraining order or other equitable relief to enforce compliance with the provisions of this Article 5; provided, however, that no specification herein of any particular legal or equitable remedy shall be deemed or construed to prohibit either party from seeking or obtaining any other remedy under this Agreement, at law or in equity.
Publishers shall comply with all applicable data protection laws and regulations, including the California Consumer Privacy Act, the Regulations (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 and any other applicable privacy laws, which requires a freely given, specific, informed, and unambiguous indication of a consumer or data subject’s wishes. Publisher is responsible for ensuring that it has obtained all necessary consumer or end user consents and Company undertakes to process such data in accordance with the documented instructions of Publisher as more fully set forth in Data Processing Agreement set forth at: https://gumgum.com/terms-and-policies/clients-dpa.
6.1 IAB Framework Consent Signals. If applicable, Publisher shall (a) be registered or (b) immediately upon execution of this Agreement, register as a Global Vendor in the IAB Europe Transparency & Consent Framework (the “Framework”) for the purpose of being able to read any consent signals sent via Consent Management Providers (CMPs) based on the Framework.
6.2 Alternative Consent Signals. To the extent Publisher expects to receive or collect any custom consent signals, please contact Company promptly so that we can ensure we can transmit these to You. Please reach out to your account manager if You have any questions about this process.
7.1 Term. This Agreement shall commence as of the Effective Date and shall remain in effect until terminated in accordance with the terms herein (the “Term”). Either party may terminate this Agreement at any time upon sixty (60) days advance written notice to the other party.
Termination for Material Breach. If there is any material breach of this Agreement by one party, the other party may terminate this Agreement, in whole or in part, if the breaching party fails to cure any such material breach within 30 days after receipt of notice of such breach; provided, however, that Company shall have right to terminate this Agreement immediately upon notice to Publisher, without providing Publisher with the right to cure, if (a) reasonably deemed necessary by Company to avoid imminent harm to its businesses, reputation or goodwill, (b) such material breach was caused by the willful acts and/or omissions of Publisher or (c) such material breach is incapable of being cured prior to the expiration of the 30-day notice period, as reasonably determined by Company.
7.2 Termination for Insolvency. Either party may immediately terminate this Agreement upon notice in the event the other party (a) admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession of by, a receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of its assets, (e) makes a general assignment for the benefit of creditors, (f) commences a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), (g) files a petition seeking to take advantage of any other law providing for the relief of debtors, (h) acquiesces to, or fails to have dismissed, within 30 days, any petition filed against it in any involuntary case pursuant to such bankruptcy laws and/or (i) takes any action for the purpose of effecting any of the foregoing (subparagraphs (a) through (i) above shall be referred to as “Bankruptcy Proceedings”).
Effect of Termination. Upon any termination or expiration of this Agreement or at any time during the Term upon request and within ten (10) days of the effective date of termination or expiration (or request, if applicable, which may be in whole or in part): (a) Publisher shall return to Company (or destroy at Company’s request) Company Materials and all copies of the Confidential Information of Company and its affiliates in Publisher’s possession, custody or control, (b) all rights and licenses granted by either party to the other herein shall terminate and be of no further force or effect, and (c) Company will perform a final accounting of amounts payable to Publisher hereunder and, subject to Company’s right to offset the earned balance of amounts due to Publisher against paid amounts determined by Company to be in error or the result of fraud or any act by, or at the direction of Publisher, in violation of this Agreement, Company will pay the earned balance of amounts due to Publisher hereunder within ninety (90) days following the last day of the month in which this Agreement is terminated.
8.1 Mutual. Each party represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into and perform the acts required of it under this Agreement; and (b) the execution and delivery of this Agreement and the performance of its obligations do not conflict with, or constitute a default under any covenant, agreement, judgment, law, order or contract to which it is subject; and (c) it shall conduct its business in accordance with good business judgment and shall not suffer or permit any act, event or condition that would discredit, disparage or adversely affect the reputation of Company and/or its affiliates.
8.2 Publishers. Publisher further represents, warrants and covenants that (a) it has obtained or shall obtain and maintain all rights, licenses, clearances, consents and authorizations necessary to perform its obligations and adhere to all of the terms and conditions set forth in this Agreement; (b) the Publisher Inventory and any content displayed thereon: (i) do not, and shall not, violate or infringe the rights of others, including, without limitation, any patent, copyright, trademark, trade dress, trade secret, privacy, publicity, or other personal or proprietary right or constitute a defamation or libel of Company or any third party and will not result in the obligation of Company to make payment of any third party licensing fees, (ii) does not violate any applicable laws, rules or regulations, (iii) are not fraudulent, misleading, or inaccurate, or (iv) do not contain any pornographic, violent or hate-based imagery; and (c) do not directly or indirectly deliver or introduce any malware, viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the Service and/or the RTB Platform (or into any media with which the Service interacts).
9.1 By Publisher. Publisher agrees to indemnify, defend and hold Company and its affiliates, and each of their respective directors, officers, employees, agents and assigns, harmless, at its own cost and expense, from and against any and all claims, causes of action, losses, damages, injuries, liabilities, costs and expenses, including attorneys’ fees and costs, judgments and any amounts paid in any settlement (collectively, “Losses”) arising out of or in connection with any actual or alleged (a) breach of any of Publisher’s representations, warranties, covenants, obligations or agreements set forth herein; (b) gross negligence or intentional or willful misconduct of Publisher, its affiliates and/or agents; and (c) any allegation that any Ad Content or other material provided by Publisher violates any applicable law or infringes any third party right, including but not limited to intellectual property rights; provided, however, that (i) no settlement or compromise shall be entered into or agreed to without Company’s prior written approval and (ii) Company has the right to participate, at its own expense, in the defense and/or settlement of any such claim or action in order to protect its own interests.
9.2 By Company. Company agrees to indemnify, defend and hold Publisher and its affiliates, and each of their respective directors, officers, employees, agents and assigns, harmless, at its own cost and expense, from and against any and all Losses arising out of or in connection with any actual or alleged (a) breach of any of Company’s representations, warranties, covenants, obligations or agreements set forth herein; (b) gross negligence or intentional or willful misconduct of Company, its affiliates and/or agents; and (c) any allegation that Company’s Services, including the RTB Platform, violates any applicable law or infringes any third party right, including but not limited to intellectual property rights. Publisher shall have the right to participate, as its own expense, in the defense and/or settlement of any such claim or action in order to protect its own interests.
9.3 Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, OR EITHER PARTY’S BREACH OF CONFIDENTIALITY OR EITHER PARTY’S FRAUD, WILLFUL ACTS, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN ANY MANNER IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, AND (B) COMPANY’S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO COMPANY BY PUBLISHER HEREUNDER IN THE PRECEDING TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE.
9.4 No Warranty. COMPANY DOES NOT GUARANTEE OR WARRANT THAT ANY COMPANY MATERIALS WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, OR LOSS. PUBLISHER ACKNOWLEDGES AND AGREES THAT ALL SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, THAT PUBLISHER ASSUMES ALL RISK AND LIABILITY ARISING FROM OR RELATING TO ITS USE OF AND RELIANCE UPON THE SERVICES, AND THAT COMPANY MAKES NO OTHER REPRESENTATIONS OR GRANTS ANY WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, WITH RESPECT TO THE SERVICES. COMPANY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
10.1 Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their permitted assigns, except that neither this Agreement nor either party’s rights or obligations hereunder shall be assigned or transferred by either party without the prior written consent of the other party and any purported assignment without such consent shall be void ab initio and of no force and effect; provided, however, that no consent shall be necessary from either party in the event of any one or more assignments of any and/or all rights or obligations hereunder, to one or more either party’s affiliates and/or any successor entity(ies) resulting from a merger, acquisition or consolidation, spin-off, divestiture or otherwise succeeding to all or a substantial portion of the assets or business of such party or its affiliates.
10.2 Relationship. Each party is an independent contractor and each party’s personnel are not employees or agents of the other party for federal, state, local or other tax purposes or any other purposes whatsoever. Personnel of one party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other party in any manner whatsoever. Nothing in this Agreement shall be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, nor constitute one party an agent of the other party.
10.3 Governing Law. Except as otherwise set forth above, the law applicable to any dispute arising out of or in connection with this Agreement and the competent courts that have exclusive jurisdiction over any such dispute arising therefrom shall be dependent on the contracting entities to this Agreement, as set forth below:
10.4 Force Majeure. Company shall not have any liability for any failure to perform this Agreement in accordance with its terms if such failure arises out of causes beyond its reasonable control (“Force Majeure Event”), including acts of God or the public enemy, acts of terrorism, acts of civil or military authority, fires, floods, storms, earthquakes or other inclement weather, accidents, explosions, sabotage, strikes, lockouts or other labor disturbances, national emergency, commotion, unavailability or interruption of energy sources, riots or war.
10.5 Notices. All notices and other communications required or permitted under this Agreement shall be in writing and (a) delivered personally, (b) mailed via an internationally recognized overnight courier or (c) via email correspondence (with confirmed receipt), to the applicable party at the addresses set forth below, unless, by notice, a party changes or supplements the addressee and addresses for giving notice. All notices shall be deemed given on the date personally delivered, when placed in the mail as specified or upon email confirmation of receipt.
If to Company:
Attention: Legal Department
1314 7th St, 4th Floor
Santa Monica, CA 90401
If to Publisher:
(Address as provided to Company via the Portal)
10.6 Counterparts; Interpretation; Construction. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
10.7 Consents; Further Assurances; Remedies. Except as specifically set forth in this Agreement, all consents, requests and approvals to be given by either party under this Agreement shall (a) be in writing and (b) not be unreasonably withheld. Each party shall make only reasonable requests to the other under this Agreement. Further, each party shall provide such further documents or instruments required by the other party as may be reasonably necessary, appropriate or desirable to give effect to this Agreement and to carry out its provisions. Notwithstanding anything set forth in this Agreement to the contrary, all rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the Parties, whether provided by law, equity, statute, in any other agreement between the Parties or otherwise.
10.8 Amendment; Waiver; Severability. No amendment, modification, waiver or discharge of any provision of this Agreement shall be valid unless made in writing and signed by an authorized representative of the party against whom enforcement is sought. No failure or delay by either party to exercise any right or enforce any obligation shall impair or be construed as a waiver or on-going waiver of that or any or other right or power, unless made in writing and signed by both Parties. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect.
10.9 Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, including, Article 2, Article 5, Article 7.4 and Articles 8-10, shall survive the cancellation, expiration or termination of this Agreement.
10.10 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral with respect to the subject matter hereof.