This Feed Agreement (the "Agreement"), by and between
a Swiss company,
on the one side
the undersigned person/entity
(hereinafter, "Traffic Partner"),
on the other side
is made as of the date set forth below.
1.1 WHEREAS, PeakClick is a developer of proprietary software, and engages in business relationships to distribute paid advertiser content over the Internet;
1.2 WHEREAS, Traffic Partner is the owner of a website or search engine and provides its users with the ability to search the Internet for relevant content by initiating Queries.
1.3 NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
2.1 "Bid Amount" is the gross revenue earned by PeakClick when a Paid Listing receives a valid Click-through.
2.2 "Click-through" means when (i) a user of Traffic Partner's website either clicks on a Link or enters a valid search request through a Search Box or a text link, which leads the user to PeakClick's website or a user of Traffic Partner's website clicks on an XML Result that was returned as a part of XML feed and provided unaltered along with unaltered description and title to the user and (ii) such action updates statistics that can be viewed at http://stats.peakclick.com. All valid Clicks must be a result of a user performing a Query. In all cases, the Paid Listings displayed must be a 100% match to the Keyword or Keyword Phrase contained in the referring Query. All valid Click-throughs need to have a valid referrer header.
2.3 "XML Result" or "feed" means a set of title, description, URL and a Bid Price. XML Result will be returned by PeakClick as a result of a valid XML query. XML Result should be shown to a user without any alterations in order of the results or to title, description and URL. Bid price may be chosen to be hidden.
2.4 "Link" means a URL hyperlinked to text, a search field or another information object on Traffic Partner's website.
2.5 "Keyword" or "Keyword Phrase" means a word or string of words entered by a user in order to initiate a Query.
2.6 "Keyword Hypertext Link" means a Keyword or Keyword Phrase contained on Traffic Partner's website(s) that upon a user Click-through would query Traffic Partner's search engine.
2.7 "PeakClick's means" means its intellectual property, e.g. source codes, methods of display or operation, all forms of documentation, trademarks and so forth.
2.8 "Search Box" means a piece of HTML code where a user enters a search query in order to receive search results from PeakClick.
2.9 "Traffic Partner's website" means the website where Traffic Partner will place PeakClick's Search Boxes and search results.
2.10 "Paid Listing" means any text-based link distributed through means of PeakClick (e.g. source codes, methods of display or operation, all forms of documentation, trademarks and so forth) that generates revenue when a user clicks on such text-based link and is redirected to the appropriate advertiser website.
2.11 "Query" means a search initiated by a user of the Search Box or via clicking on a Keyword Hypertext Link contained on Traffic Partner's website(s).
2.12 Only natural persons qualify as "users" within the meaning of this Agreement.
3.1 PeakClick Feed application is available at http://www.peakclick.com/signup.html. PeakClick may reject your application if it - in its sole discretion - determines that Traffic Partner's website is unsuitable for the Feed application for any reason.
3.2 PeakClick agrees to provide code(s) to Traffic Partner in order to enable Traffic Partner to display Paid Listings on any of its websites or products.
3.3 Traffic Partner will select the Search Box(es) and/or Links he/she wishes to display from the Search Box(es) and Links provided by PeakClick and will place the selected Search Box(es) and/or Links on Traffic Partner's Site and enable users of Traffic Partner's Site to enter search queries at the Search Box(es) and click on the Links. Traffic Partner may display the Search Box(es) and/or Links he/she selects on as many pages of Traffic Partner's Site as Traffic Partner wishes.
3.4 Traffic Partner will provide users with the ability to perform Queries using PeakClick's means, such means may not be altered or modified by Traffic Partner.
3.5 Traffic Partner will not perform test queries. Traffic Partner will not use any portion of Paid Listings for any other purpose than for displaying Paid Listings on Traffic Partner's website(s). Information (including but not limited to trends or data) may not be collected, transferred or otherwise used by Traffic Partner without PeakClick's prior written consent.
3.6 Traffic Partner may use or display Paid Listings only in the format provided to Traffic Partner by PeakClick, and in the size, placement and manner that complies in all respects with PeakClick's guidelines as described herein or as may be modified in writing, or electronically, from time to time by PeakClick, in its sole discretion.
3.7 Traffic Partner will not cache any Paid Listing provided by PeakClick and agrees to initiate a new search through PeakClick for each Query posed on Traffic Partner's website(s).
3.8 PeakClick does not accept any form of spam and discards all clicks from unsolicited e-mail, newsgroups, ICQ, unauthorized adjustment of browser toolbars, default home pages, search features within standard browser settings and all other methods of generating clicks other than those generated from users.
3.9 PeakClick will grant Traffic Partner a percentage fee that will amount to 70% (and possibly adjusted at a later time) of the amount collected by PeakClick in connection with each valid Click to a paid PeakClick listing from a PeakClick search result or PeakClick search box during the term of this agreement. PeakClick shall not be required to make any payments to Traffic Partner in connection with this Agreement other than the commissions on Click-throughs, if earned. At any time and with reasonable prior notice, PeakClick may, from time to time, modify the commission rate to be paid to Traffic Partner. Traffic Partner understands and agrees that the percentage fee may be reduced in this manner and that Traffic Partner will not be entitled to contest such reduction. Further, PeakClick will only pay a percentage fee for valid clicks as soon as and provided that PeakClick has received payment from its customers.
3.10 Traffic Partner has to go through a validation process after signup, validation is a process where Traffic Partner has to reveal his traffic sources and Click-throughs of Traffic Partner will be scored for traffic quality. Click fraud traffic, malware, spam and other illegal sources of traffic will lead to immediate account termination.
3.11 Traffic Partner acknowledges and agrees that PeakClick will pay a percentage fee only on valid Click-throughs that qualify as "Click-through" as defined above, and not on any fraudulent Click-throughs or any Click-throughs from improper use of the Search Box(es). PeakClick shall have the right, in its sole discretion, to determine whether Click-throughs are fraudulent or derived from improper use of the Search Box(es). Invalid Click-throughs include, but are not limited to, hit bots, robots, spiders, multiple clicking scripts, zeroframes, iframes, IRC cheats, or other software programs which may now exist or which may be developed in the future for purposes of artificially initiating or generating Internet searches or clicks on Paid Listings through Traffic Partner's website(s). PeakClick will only accept and pay a percentage fee for quality traffic; such quality traffic includes, but is not limited to, traffic generated from countries such as USA, Canada, EU-member states, Switzerland, Norway, and other western European countries. Traffic generated from countries including, but not limited to, China, Russia, or African countries is not considered quality traffic and is not considered for the calculation of the percentage fee.
3.12 PeakClick shall not be responsible for payments of the percentage fee that have not been performed if data has been lost due to hardware failure, data failure, hackers' attack, fire, flood, or other reasons or events that are beyond PeakClick's sphere of influence.
3.13 PeakClick will charge payout fees as follows: for Western Union transfers, the Western Union fee; for wire transfers, USD30 (if Traffic Partner has an USD account) or EUR30 (if Traffic Partner has a EUR account); for Webmoney, the Webmoney fee.
3.14 PeakClick has two billing periods each month (1st of the month until the 15th of the month and 16th of the month until the last day of the month) and PeakClick will pay to Traffic Partner the percentage fee/commissions in US Dollar or EUR funds (as Traffic Partner decides upon sign-up) within 1 business day after the end of the billing period minus payout fees provided that Traffic Partner has earned a minimum of 100EUR (or USD equivalent) up to date, otherwise any amount earned will be carried forward. Alternatively, Traffic Partner may choose to suspend these automatic payments and choose "payment on request" as available on PeakClick's website (log-in area). Traffic Partner is responsible for its own tax payment and/or tax filings and reports.
3.15 Traffic Partner will not offer any type of incentives to users to click on Paid Listings. If Traffic Partner acts contrary to this provision, the percentage fee mentioned above will not be paid.
3.16 Traffic Partner is obligated to prevent invalid Click-throughs. Such invalid Click-throughs include, but are not limited to hit bots, robots, spiders, multiple clicking scripts, zeroframes, iframes, IRC cheats, or other software programs which may now exist or which may be developed in the future for purposes of artificially initiating or generating Internet searches or clicks on Paid Listings through Traffic Partner's website(s). PeakClick is entitled to block certain IP addresses on its own, if Traffic Partner is not able to prevent such programs from performing repeated searches or Click-throughs on Traffic Partner's website(s).
3.17 Traffic Partner will not display Paid Listings in any pop-up window unless the pop-up window is deployed as a direct response to a Query, and the Paid Listings consist of listings for the exact Keyword or Keyword Phrase used in the Query. Traffic Partner will further not pop-up a new window to a user that contains adult-oriented content, unless the user has given consent to Traffic Partner to view adult-oriented content.
3.18 Traffic Partner is prohibited from placing links to adult search results on search results deriving from a non-adult keyword search. Furthermore, Traffic Partner is prohibited from placing links to non-adult search results on search results deriving from an adult keyword search.
3.19 Traffic Partner will utilize a Search Box on Traffic Partner's website(s) that contains Keyword Hypertext Links. Traffic Partner will dynamically provide to PeakClick the unique user IP address in the manner specified by PeakClick on a per click-through basis. PeakClick shall limit the use of such IP address information gathered from Traffic Partner solely for fraud screening purposes. In any event, Traffic Partner will not utilize any means which would prevent user's Internet browser from passing the referring URL to PeakClick.
3.20 Traffic Partner acknowledges that all right, title and interest in PeakClick's means is exclusively owned by PeakClick and/or its licensors, and is PeakClick's property, and that no right other than the limited display license granted herein is provided to Traffic Partner. Traffic Partner agrees that this limited, revocable, non-exclusive, non-transferable, non-sublicensable license to display PeakClick's means takes effect to the benefit of PeakClick. Traffic Partner agrees not to contest, in any court or other authority having proper jurisdiction, the validity of any of PeakClick's means (e.g. source codes, methods of display or operation, all forms of documentation, trademarks and so forth). During the term or any renewal term of this Agreement, Traffic Partner shall not adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, any of PeakClick's trademarks, service marks or trade names, or any word or mark confusingly similar to them in any jurisdiction.
3.21 PeakClick provides Traffic Partner with additional information, including, but not limited to keyword databases, landing pages, search boxes, or scripts. This additional information may be used by Traffic Partner only (i) during the term of this Agreement and (ii) in connection with PeakClick's search engine. The use with other pay-per-click engines or other affiliate programs and/or the use after the Term of this Agreement (as defined below) is prohibited. Traffic Partner may not, nor knowingly permit any sub-affiliate to, use third-party trademarks in any manner to direct traffic to any Traffic Partner Websites including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name of any third party, or any derivative of any such trademark, service mark or brand name. Traffic Partner may not allow the additional information to be placed on any non-Traffic Partner Websites without the prior express written consent of Peakclick. Traffic Partner must place or use the additional information only with the intention of delivering valid click-throughs. Traffic Partner may not, nor knowingly permit any person to, activate the additional information or inflate the amount of valid click-throughs through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing a click-through. Traffic Partner agrees and acknowledges that it shall not, nor shall it permit any Sub-Licensees to: (a) use incentivized offers, create the appearance of incentivizing offers, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating click-throughs, or otherwise attempt to induce Internet users to click on any of the additional information through use of any other incentives, without obtaining the prior written approval of Peakclick; (b) place any statement in close proximity to the additional information requesting that e-mail recipients or Internet users “click” on or fill-out the applicable additional information (e.g., “Please click here”); (c) place misleading statements in close proximity to the additional information; (d) take control of a user's computer by delivering advertisements that a user of a computer cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (e) install or execute on another's computer one or more additional software program(s) without consent of the user (in addition, Traffic Partner must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the user of the computer); and/or (f) distribute spyware or other similar harmful software. Because damages flowing from a violation of this term would be difficult to quantify and ascertain, if Traffic Partner violates this provision, PeakClick is entitled to liquidated damages in the amount of 100.000,-EUR.
3.22 The term of this Agreement (the "Term") will begin on the date PeakClick accepts Traffic Partner's completed Feed program application and will continue in full force and effect until terminated pursuant to this paragraph. Either party shall have the right, in its sole discretion for any reason whatsoever, to terminate this Agreement at any time by giving the other party seven days written notice; provided, however, that PeakClick can terminate this Agent immediately in the event (i) it deems the content on Traffic Partner's Site objectionable or, (ii) if PeakClick becomes aware or suspects in any way that Traffic Partner is using or has used any automated means to generate additional Click-throughs, including, but not limited to, hit bots, robots, spiders, multiple clicking scripts, zeroframes, iframes, IRC cheats, or other software programs which may now exist or which may be developed in the future for purposes of artificially initiating or generating Internet searches or clicks on Paid Listings through Traffic Partner's website(s) or, (iii) if there is a change in the content, quality or functionality of any Traffic Partner's website that PeakClick determines in its sole discretion to be unfavorable to PeakClick or, (iv) PeakClick determines, in its sole discretion, that the quality of traffic delivered by Traffic Partner is not satisfactory. In any of these events no funds will be paid and Traffic Partner agrees not to take any legal action against PeakClick.
3.23 Unless otherwise stated in writing by Peakclick, each piece of additional information made available to a Traffic Partner may include, in unaltered form, the Peakclick special transaction tracking codes as embedded in all such additional information. Traffic Partner will not knowingly modify, circumvent, impair, disable or otherwise interfere with any transaction tracking codes and/or other technology and/or methodology required or made available by Peakclick to be used in connection with any and all additional information provided by Peakclick.
3.24 Should Traffic Partner market any campaign to its affiliate database, Traffic Partner must, upon the request of Peakclick, be able to produce the name, date, time, IP address and referral URL where the applicable consumers granted Traffic Partner affirmative consent, as defined by applicable law (“Affirmative Consent”), to send such e-mail marketing messages. Prior to the sending of any commercial e-mail in connection with the network, Traffic Partner shall provide Peakclick with a list of Internet protocol (“IP”) addresses and domain names that it, or its sub-affiliates, intend(s) to use in connection with the particular campaign. Traffic Partner represents and warrants that, at all times, it will comply with all applicable state and federal laws, rules and Federal Trade Commission implementing regulations (including, but not limited to, CAN-SPAM and any international laws, rules and regulations), as well as any published rules or guidelines of the Internet access service, networks, domains and/or e-mail service providers, with respect to its e-mail marketing. When performing e-mail marketing of any kind and on behalf of any advertiser, Traffic Partner represents and warrants that Traffic Partner shall transmit commercial e-mail only to those recipients that have given Traffic Partner Affirmative Consent to receive e-mail advertising from Traffic Partner and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient. Traffic Partner and its sub-affiliates must: (a) refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information); (b) not use any “subject” or “from” line that is materially false or misleading (without limiting the generality of the foregoing, Traffic Partner may NOT use brand names and/or trademarks of another party (e.g., Milton Bradley or Apple) in the “subject” or “from” lines or body of any commercial e-mail transmission.); (c) refrain from seeking or obtaining unauthorized access to computers for the purpose of sending any and all commercial e-mail; (d) include within all commercial e-mail sent: (i) a valid street address for Traffic Partner; (ii) a clear and conspicuous opt-out notice and functional opt-out mechanism that must remain active for at least thirty (30) days from the date that the subject e-mail was transmitted; (iii) clear and conspicuous language in the body of the email identifying the message as an advertisement or solicitation by use of either header or footer information which states that the message is an advertisement or solicitation; and (iv) process unsubscribe requests within three (3) days of receipt of same; (d) not use proxies or relays to send email; (e) not use email addresses obtained via harvesting or dictionary attack; and (f) immediately notify Peakclick in the event that any complaint, investigation and/or litigation ensues concerning Traffic Partner’s or any sub-affiliate’s e-mail practices (whether or not such complaint, investigation and/or litigation relates to Traffic Partner’s relationship with Peakclick). Traffic Partner is solely responsible for all consumer complaints relating to e-mail campaigns conducted by Traffic Partner. Traffic Partner represents and warrants that it will respond to all consumer complaints within forty-eight (48) hours of notification. In addition to all other available remedies, Peakclick may withhold and suspend payments to Traffic Partner until any and all outstanding consumer complaints are resolved. All costs associated with such required actions shall be deducted from Traffic Partner Payments. In the event that any state or federal law, rule or regulation governing e-mail communications is enacted or amended after the effective date of this Agreement setting forth standards more restrictive than those set forth herein, the more restrictive standards contained in such enacted or amended law, rule or regulation shall apply to all Traffic Partners with or without notice from Peakclick of such change in the law. Traffic Partner acknowledges that any failure to comply with this section may, in Peakclick’ sole discretion, result in the immediate termination of this Agreement and the forfeiture of any and all rights to any Commissions or Payments otherwise owed to Traffic Partner by Peakclick.
3.25 Traffic Partner agrees that at all times during the term of this Agreement it shall maintain accurate books and records relating to its traffic or use of additional information provided by Peakclick. Traffic Partner agrees that Peakclick, or any designee of Peakclick that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Traffic Partner at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at Peakclick’s sole cost and expense and shall be strictly limited to those books and records that specifically relate to Traffic Partner’s traffic or use of additional information provided by Peakclick. Notwithstanding the foregoing, if Peakclick uncovers any material misconduct associated with Traffic Partner’s use of additional information provided by Peakclick, then the audit shall be at the sole cost and expense of Traffic Partner.
4.1 Representations and Warranties. If Traffic Partner is a natural person, he/she represents and warrants to be at least 18 years of age in order to qualify and participate in the PeakClick Feed Program. If Traffic Partner is a legal entity (corporation), the person applying for the Feed Program represents and warrants that it has full power and authority to represent such legal entity (corporation), that it has obtained all necessary consents, approvals, licenses and permissions, and that this Agreement constitutes a valid, legal and binding obligation, enforceable against Traffic Partner in accordance with its terms.
4.2 Representations and Warranties. Traffic Partner represents and warrants that the content on Traffic Partner's website(s), and/or the technology used by Traffic Partner in connection with this Agreement are owned or legally licensed for use by Traffic Partner; and Traffic Partner represents and warrants that Traffic Partner's website(s) does not violate any applicable laws, rules or regulations and does not infringe or violate any copyright, patent, trademark or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of any person or entity, including, but not limited to, rights of privacy and publicity.
4.3 Representations and Warranties. PeakClick expressly disclaims any representations and warranties under this agreement.
4.4 Indemnification. Traffic Partner is obligated to indemnify, defend and hold PeakClick harmless from and against any and all third party claims, damages, liabilities, costs and expenses (including attorneys fees and expenses) arising out of the operation of Traffic Partner's Site, resulting from a breach of any warranty, representation or covenant made by Traffic Partner under this Agreement; or arising from any action against PeakClick arising from Traffic Partner's use or display of PeakClick's means or arising from any breach by Traffic Partner of any of the provisions or requirements of this Agreement.
4.5 Liability. PeakClick shall not be liable for any special, indirect, consequential (including but not limited to lost profits), incidental, exemplary or punitive damages arising, directly or indirectly, out of its performance of this Agreement.
4.6 Modifications. PeakClick may modify any of the terms and conditions contained in this Agreement. PeakClick will attempt to notify Traffic Partner via e-mail of any such modification. If a modification is unacceptable to Traffic Partner, Traffic Partner may terminate this Agreement by giving notice as described in 3.19 above.
4.7 Independent Contractors. The parties are independent contractors, and this Agreement will not be construed to create a partnership, joint venture or employment relationship between them. Neither party will represent itself to be an employee, agent or representative of the other, and neither party will have the right or authority to create any obligation or responsibility on the others behalf. Traffic Partner maintains sole responsibility for the creation and maintenance of as well as for all content that appears on Traffic Partner's website(s). Furthermore, Traffic Partner maintains sole responsibility for the compliance with any laws (e.g. data protection laws, e-commerce laws and so forth).
4.8 Confidentiality. The Parties hereto undertake to keep this Agreement and its contents, the negotiations relating to this Agreement (and such other agreements entered into pursuant to it) and the Parties businesses, financial or other affairs, including, but not limited to proprietary information about PeakClick's search engine or URLs strictly confidential and not to make any disclosures in respect thereof save where: (i) required by law, or (ii) as separately agreed upon in writing prior to disclosure. Because damages flowing from a violation of this term would be difficult to quantify and ascertain, if Traffic Partner violates this provision, PeakClick is entitled to liquidated damages in the amount of 100.000,-EUR.
4.9 Assignments. Traffic Partner may not assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of PeakClick.
4.10 Non-solicitation. During the term of this Agreement (the Term as defined above) and for the period of one year following the expiration or cancellation of this Agreement, Traffic Partner agrees not to solicit any of PeakClick's business partners of whom Traffic Partner has learned through PeakClick or its activities under this Agreement. If Traffic Partner violates this provision, PeakClick is entitled to liquidated damages in the amount of 100.000,-EUR.
4.11 Data Protection. Each Party shall ensure that it shall at all times comply with the provisions and obligations imposed on it by the Austrian Data Protection Act (including making and/or amending all registrations and notifications necessary to allow it to fulfill its obligations under this Agreement). All personal data acquired by either Party from the other shall be returned or deleted (at the option of the requesting Party) on request. Traffic Partner is informed and agrees that PeakClick stores and transfers (also to countries outside the European Union) personal data of Traffic Partner for purposes of this agreement. This consent may be withdrawn by Traffic Partner.
4.12 Notice. Any notice to be given under this Agreement shall be in writing and shall be deemed delivered if delivered by e-mail: if to Traffic Partner, at the e-mail address provided in Traffic Partner's Feed Program application form; and if to PeakClick, to d2hvaXNAcGVha2NsaWNrLmNvbQ==.
4.13 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be legally effective, binding and valid under the applicable laws, but if any provision of this Agreement shall be unenforceable or invalid thereunder, such provision shall be ineffective only to the extent of such unenforceability or invalidity and be replaced by such valid and enforceable provision which bona fide parties would consider to match as closely as possible the invalid or unenforceable provision, attaining the same or a similar economic effect. The remaining provisions of this Agreement shall under all circumstances continue to be binding and in full force and effect.
4.14 All disputes shall be submitted to Arbitration. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys’ fees and costs. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief in a court of competent jurisdiction. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against Peakclick and its employees, officers, directors, members, representatives and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorneys fees and court costs that Peakclick incurs in seeking such relief. This Agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent agreement. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. Traffic Partner agrees that any unauthorized and/or unlawful use of Peakclick would result in irreparable injury to Peakclick for which monetary damages would be inadequate. In such event, Peakclick shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against Traffic Partner without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to Peakclick. Peakclick and Traffic Partner are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Peakclick’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Any attempt by any individual, whether or not a Traffic Partner, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of Peakclick, is a violation of both criminal and civil law and Peakclick will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity. This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and Peakclick’s successors and assigns. Traffic Partner is not permitted to transfer any rights and obligations pursuant to this Agreement. Any attempt to do so will result in the immediate termination of this Agreement.
4.15 Traffic Partner agrees that Peakclick will not be liable, or be considered to be in breach of this Agreement, on account of Peakclick’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond Peakclick’s reasonable control and that Peakclick is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, Peakclick will give Traffic Partner notice and will use commercially reasonable efforts to minimize the impact of any such event.
4.16 Governing law and jurisdiction. This Agreement shall exclusively be governed and construed in all respects in accordance with the laws of the Swiss Confederation. The parties agree to submit to the exclusive jurisdiction of the competent court in Baar.