LKQD Publisher Agreement
Last Updated: March 4th, 2018
PLEASE READ THIS AGREEMENT CAREFULLY. BY CHECKING THE BOX INDICATING “I AGREE TO THE TERMS OF THE AIRPUSH DEVELOPER AGREEMENT” OR BY DOWNLOADING, ACCESSING OR USING THE AIRPUSH TECHNOLOGY OR SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE AIRPUSH TECHNOLOGY OR SERVICE. YOU AND AIRPUSH AGREE TO BINDING ARBITRATION TO RESOLVE ANY DISPUTE ARISING FROM THIS AGREEMENT OR RELATING TO THE AIRPUSH TECHNOLOGY, ADS, AND SERVICES. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR HAVING A JURY TRIAL. (SEE SECTION ON ARBITRATION BELOW FOR FURTHER DETAILS).
You and Airpush agree as follows:
1. Limited License
(a) License Grant. Unless otherwise agreed upon in writing, subject to the terms and conditions of this Agreement, Airpush grants Publisher a limited, non-exclusive, non-transferable and non-sublicensable license to (i) install and use the LKQD Technology solely in Publisher’s mobile application(s), mobile website(s), desktop, or connected TVs (“Application”) that will access and use the LKQD Technology to deliver ads to an Application user (“Consumer”) and (ii) access and use the LKQD Technology in order to enable Airpush to provide ads to Consumers’ mobile devices through Publisher’s Application. Publisher agrees that its license to the LKQD Technology is further limited by the terms and conditions provided by LKQD Technology on its website.
To provide the Service, Publisher authorizes LKQD and Advertisers to access, index, store, and cache requests made from Publisher’s Application to LKQD including, without limitation, through automated means. Further, Publisher authorizes Airpush to provide ads via LKQD Technology to Consumers’ mobile devices through Publisher’s Application.
(b) Limitations. Section 1(a) states the entirety of Publisher’s rights with respect to the LKQD Technology provided by Airpush. Airpush reserves all rights not expressly granted in this Agreement. Without limiting the foregoing, Publisher will not, and Publisher will not authorize or permit any third party to do any of the following unless expressly authorized in this Agreement or in writing by Airpush: (i) reproduce, license, distribute, publicly perform or publicly display, lease, rent, transfer, resell or otherwise dispose of the LKQD Technology; (ii) distribute any source code provided as part of the LKQD Technology; (iii) modify, alter or create any derivative works of the LKQD Technology; (iv) reverse engineer, disassemble, decompile or attempt to uncover the source code for or any trade secrets related to the LKQD Technology except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (v) work around any technical limitations in the LKQD Technology; (vi) remove, alter or obscure any proprietary rights or other notice on the LKQD Technology; (vii) use the LKQD Technology or the Service other than for its intended purpose; (viii) use the LKQD Technology to create (or facilitate the creation of) any product or service that is in competition with the LKQD Technology or Airpush technology, including connecting to any other product or service using the LKQD Technology; or (ix) combine the LKQD Technology so that Publisher restricts or charges for access to the LKQD Technology.
Any access or use of the LKQD Technology other than as specifically authorized herein, without the prior written permission of Airpush, is strictly prohibited and will immediately terminate the license granted in this Agreement. Such unauthorized use may also violate applicable laws including, without limitation, copyright and trademark laws, and applicable privacy and communications regulations and statutes. Unless stated in this Agreement, nothing in this Agreement will be construed as conferring any right or license to the LKQD Technology and any related intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
(c) Documentation. Publisher may make and use a reasonable number of copies of any documentation provided with the LKQD Technology licensed hereunder; provided, that such copies will only be used for the purpose described in Section 1(a) and are not republished or redistributed (either in hard copy or electronic form) beyond Publisher’s premises.
2. Proprietary Rights
(a) Ownership. Other than the limited license expressly set forth in Section 1(a), Publisher does not acquire any title or ownership rights in the LKQD Technology nor in any related intellectual property rights.
(b) Unauthorized Use. Publisher will promptly notify Airpush of any unauthorized use of the LKQD Technology that is provided by Airpush that comes to Publisher’s attention. In the event of any such unauthorized use by Publisher or Publisher’s employees, agents or representatives, Publisher will use its best efforts to terminate such unauthorized use and to retrieve any copy of the LKQD Technology provided by Airpush in the possession or control of the person or entity engaging in such unauthorized use. Publisher will immediately notify Airpush of any legal proceeding initiated by Publisher in connection with such unauthorized use. Airpush may, at its option and expense, participate in any such proceeding and, in such event, Publisher will provide such authority, information and assistance related to such proceeding as Airpush may reasonably request to protect Airpush’s interests.
3. Eligibility, Account and Site
(a) Eligibility and Site Terms. Publisher agrees to abide by the eligibility and terms set out by LQKD on its website.
5. Publisher Obligations
(a) Child-Directed Traffic. You are not permitted to utilize the LKQD Technology in any Application that contains any child-directed traffic or otherwise falls under the Children’s Online Privacy Protection Act (COPPA). If you believe you have an Application that falls under COPPA, you must email Airpush at email@example.com with the name and details of your Application and immediately request that Airpush stop providing Ads to your Application.
(d) Compliance with Laws and Industry Standards. Publisher represents and warrants that Publisher complies with all applicable laws, regulations, and industry standards (including, but not limited to, any applicable privacy and security laws, regulations, and mobile and advertising industry standards associated with Publisher’s Application and any collection, use and disclosure of Consumer Data by Publisher or any third party via Publisher’s Application. Such laws and standards include, but are not limited to, COPPA, Digital Advertising Alliance Self-Regulatory Guidelines for mobile, the Federal Trade Commission guidelines, and the EU data protection laws). Publisher is solely responsible for ensuring that its Application is in compliance with all applicable laws and regulations.
(e) Compliance with Airpush Policies. Publisher agrees to comply with the Airpush Acceptable Use Policy as to its Application, available at www.airpush.com/acceptable_use_policy/.
(f) Compliance with Third Party Terms.
Publisher agrees to comply with any applicable third party terms, policies, guidelines, or other applicable terms that apply to Publisher’s Application, distribution, data handling and business practices, including, but not limited to Publisher policies for those by LKQD, Android/Google Play, the Android Software Development Kit, and iOS/Apple App Store policies.
Airpush does not control, endorse or adopt any ads and makes no representation or warranties of any kind regarding the content of the ads, including, without limitation, regarding the accuracy, completeness or decency of any ad. Airpush is not responsible or liable in any manner for any ads and undertakes no responsibility to update or review any ads. Within certain limits set by Airpush, Publisher will have the ability to control the frequency and types of ad units that are delivered to Consumers’ mobile devices. Publisher agrees not to remove, obscure, hinder, reverse engineer, or otherwise interfere with any ad for an Application in any manner.
(a) Compensation. Advertisers pay Airpush based on certain events, including the display of an ad, a user clicking on an ad, or a user completing some action after viewing or clicking on an ad (“Events“) which will be tracked through the LKQD platform. Airpush pays Publishers a percentage of the revenue it receives from Advertisers based upon the Events that are attributable to Publisher’s Application. LKQD will compile and calculate the data necessary to determine Publisher’s compensation. LKQD’s figures and calculations regarding Publisher’s compensation will be final and binding. Unless otherwise posted on the Site or otherwise agreed to in writing between Airpush and Publisher, Publisher’s compensation will only include revenue actually received by Airpush from the Advertisers less: (i) any returns, credits or other similar allowances made by Airpush to a particular Advertiser; (ii) any applicable taxes, commissions, carrier fees and other similar taxes, fees and expenses; and (iii) any applicable LKQD fees. Airpush will be entitled to withhold, deduct and set off from any payments to be made to Publisher hereunder any sums owed by Publisher to Airpush, whether in connection with this Agreement (including any breach hereof by Publisher) or otherwise. Airpush may deduct from any present or future compensation due the amount of previously paid compensation for any returns, credits or other similar allowances made by Airpush to a particular Advertiser. Further, Airpush will have no liability whatsoever to provide Publisher with compensation unless Airpush receives full payment by the Advertiser and/or LKQD. Airpush will have no duty to compensate Publisher for any revenue received by Airpush for any services provided by Airpush to Advertisers, including consulting, ad lay-out, copy writing or any other similar services. In addition, Airpush may withhold compensation in the event that Publisher is in breach of any term of this Agreement.
(b) Uncollectible Accounts. In the event Airpush does not receive funds from LKQD or Advertisers within one hundred twenty (120) days of when the amount is due, then the account will be declared an uncollectible account and no compensation will be due or payable to Publisher in connection therewith.
(c) Amount Due and Disputes. Airpush will pay Publisher the amounts properly due and payable within sixty (60) days following the end of the applicable month in which it is earned; provided that, such amounts exceed fifty dollars (USD) ($50). If the amounts properly due and payable are less than fifty dollars (USD) ($50), then Airpush will pay Publisher the following month; provided that, such amounts exceed fifty dollars (USD) ($50). Any disputes over amounts due and payable by Airpush to Publisher must be made in writing within thirty (30) days after Airpush makes the applicable payment to Publisher. Airpush will consider such disputes in its discretion, but unless Airpush expressly determines otherwise in writing, the amounts due and payable by Airpush to Publisher will be deemed accurate and accepted as such by Publisher.
(d) Documents. If located in the United States, Publisher will submit to Airpush a W-9 IRS tax document (via a digital copy uploaded to Airpush portal account). If Publisher is located outside the United States, Publisher will submit to Airpush an original W-8 IRS tax document or other IRS certificate acceptable to Airpush. Publisher will determine which IRS document is appropriate for its needs, and Airpush will not be liable for Publisher’s failure to submit the appropriate documentation. Publisher will submit additional documentation if and as directed by Airpush when required to process payment or required under law. In the event that Publisher does not provide Airpush with appropriate tax, bank, or other information required by Airpush, then Airpush may withhold payment until it receives such information.
(e) Taxes. Publisher is responsible for collecting and remitting any income, value added or other taxes, such as consumption taxes, imposed on the payments to Publisher. The amounts paid to Publisher hereunder are exclusive of any taxes that may apply to such payments. Airpush maintains the right, however, to deduct or withhold any applicable taxes from amounts it owes Publisher, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to Publisher.
8. Submissions and Confidentiality
(a) Submissions. Any questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information submitted about Airpush or the LKQD Technology (collectively, “Submissions“), whether provided to Airpush by email or otherwise, are non-confidential and will become the sole and exclusive property of Airpush, including all related intellectual property rights without acknowledgment or compensation to Publisher.
(b) Confidentiality. Airpush’s Confidential Information includes, but is not limited to, the names of its Advertisers, the data collected under this Agreement, and the terms of this Agreement.
- “Confidential Information” means information that is either (a) any information related to a party’s current or then-proposed products, services, or business, including without limitation, business opportunities, product designs, financial information, marketing plans, proposed terms, discounts, inventions and know-how; or (b) any information that would reasonably be understood to be confidential due to the nature of the information or circumstances of its disclosure, that is disclosed by a party to this Agreement (the “Discloser”) to the other party (the “Recipient”).
- Non-disclosure of Confidential Information. The Recipient of the Confidential Information will not use or disseminate the Confidential Information except as expressly permitted in this Agreement. The Recipient must (i) hold the Confidential Information in strict confidence, no less than the same degree of care as Recipient accords to its own Confidential Information, but not less than reasonable care and take precautions to protect such Confidential Information; (ii) not divulge Confidential Information to any third party except for its consultants, employees, and contractors on a need-to-know basis as permitted under this Agreement; and (iii) not copy, reverse engineer, or otherwise alter any materials or Confidential Information received under this Agreement. Recipient certifies that each of its consultants, employees, and contractors have agreed to be bound by terms substantially similar to the terms applicable to Recipient under this Agreement. Recipient must give immediate notice to Discloser of any unauthorized use or disclosure of Discloser’s Confidential Information. Recipient must assist Discloser in remedying any such unauthorized use or disclosure of Discloser’s Confidential Information.
- Exclusions. The non-disclosure obligations in section 9(a) shall not apply to information that the Recipient can document: (i) was in Recipient’s rightful possession, free of any confidentiality obligation prior to receipt from the Discloser; (ii) is or becomes public knowledge through no fault of the Recipient; (iii) was rightfully disclosed to Recipient by a third party with no restriction on disclosure; (iv) was developed by Recipient, its employees, or agents independently of and without reference to any of Discloser’s Confidential Information; or (v) was disclosed with the prior approval in writing by Discloser. Recipient may disclose Confidential Information in response to a valid order by a court or other governmental body, provided that Recipient make commercially reasonable efforts to provide Discloser with prompt notice of such disclosure and uses diligent efforts to limit such disclosure and assist Discloser to obtain a protective order or to otherwise seek confidential treatment.
- Return of Confidential Information. Upon termination of this Agreement or promptly upon written request by Discloser; the Recipient will: (i) cease using the Confidential Information; (ii) return or destroy the Confidential Information (including the Data), even if not Discloser-furnished, including any copies, notes, or other derivatives thereof to Discloser within 7 business days of the request; and (iii) provide written certification of Recipient’s compliance with Recipient’s obligations under this Section. All materials (including, without limitation, documents, drawings, papers, tapes, models, sketches, designs, and lists) provided by Discloser to Recipient (whether or not they contain or disclose Discloser’s Confidential Information) are property of the Discloser.
9. Export Restrictions
Publisher is responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, Publisher represents and warrants that Publisher will not export or re-export the LKQD Technology to any county, or to any person, entity, or end-user in a manner prohibited by U.S. export controls, restrictions and regulations. Publisher further represents and warrants that it (i) is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (ii) is not a “Specially Designated National” by the Office of Foreign Assets Control; and (iii) is not placed on the U.S. Department of Commerce’s Denied Persons List; and (iv) will not access or use any LKQD Technology if any applicable laws in Publisher’s country prohibit it from doing so in accordance with this Agreement. Publisher further represents and warrants that Publisher will not export the LKQD Technology to any person or entity that falls within (i-iv) above and that no U.S. federal agency has suspended, revoked, or denied Publisher’s export privileges.
Publisher will defend, indemnify and hold harmless Airpush, its affiliates, independent contractors, service providers and consultants, its and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) the Application, including violations of any third party terms or violations of any laws, regulations or industry best practices in the relevant jurisdictions; (b) Publisher’s use of the LKQD Technology, the LKQD Site or the Service; (c) Publisher’s violation of any representations and warranties or any other term of this Agreement; or (d) Publisher’s violation of any rights of a Consumer.
Airpush will have the right to approve the counsel selected by Publisher for defense of any such claim, which approval will not be unreasonably withheld. Publisher will provide Airpush prompt written notice of any such claim and such information and assistance as Publisher may reasonably request to help Publisher defend such claims; provided that Publisher pay or reimburse all of the costs and expenses reasonably incurred by Airpush in connection with any assistance requested by Publisher under this Section. Publisher will not have any right to settle any such claim without Airpush’s written consent, if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Airpush or otherwise requires Airpush to take or refrain from taking any material action (such as the payment of fees). Airpush may, at its option and expense, participate in, or take control over, the defense of any such claim and, in such event, Publisher will provide such authority, information and assistance related to such proceeding as Airpush may reasonably request to protect Airpush’s interests. Publisher will maintain such insurance policies (including, without limitation, commercial liability insurance and cyber liability insurance) as may be sufficient to protect Publisher against all applicable risks arising out of Publisher’s use of the LKQD Technology or the inclusion of Advertiser ads. Publisher will provide Airpush with certificates of insurance and other supporting materials as Airpush may reasonably request to verify Publisher’s continuing compliance with the preceding sentence.
THE LKQD TECHNOLOGY, THE SITE, THE ADVERTISEMENTS, AND THE AIRPUSH SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. AIRPUSH DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, RELIABILITY, ACCURACY, TITLE AND NON-INFRINGEMENT AS TO THE LKQD TECHNOLOGY, THE SERVICE AND THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. AIRPUSH DOES NOT REPRESENT OR WARRANT THAT THE LKQD TECHNOLOGY, THE ADS, THE AIRPUSH SERVICES OR THE SITE ARE ACCURATE, COMPLETE, RELIABLE, FREE OF VIRUSES OR HARMFUL COMPONENTS, CURRENT OR ERROR-FREE. PUBLISHER ACKNOWLEDGES THAT AIRPUSH HAS NO CONTROL OVER THE LKQD TAGS OR WEBSITE NOR THE ADS AND PUBLISHER’S USE OF THE LKQD TECHNOLOGY, SITE, AIRPUSH SERVICES, AND ADS IS AT PUBLISHER’S OWN DISCRETION AND RISK AND PUBLISHER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS OR ITS END-USERS’ COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. PUBLISHER SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD. PUBLISHER ACKNOWLEDGES AND AGREES THAT AIRPUSH IS MERELY PROVIDING PUBLISHER WITH ACCESS TO THE LKQD TAGS AND THAT AIRPUSH HAS NO LIABILITY FOR ANY LKQD TECHNOLOGY OR ADS SERVED BY THE LKQD TECHNOLOGY.
12. Limitation of Liability
IN NO EVENT SHALL AIRPUSH, ITS AFFILIATES, INDEPENDENT CONTRACTORS, ADVERTISERS, SERVICE PROVIDERS, AND CONSULTANTS, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE LKQD TECHNOLOGY AND THE SITE, THE AIRPUSH SERVICES, THE ADS, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE OR TECHNOLOGY, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY PUBLISHER ON ANY INFORMATION OBTAINED FROM AIRPUSH, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO AIRPUSH’S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF AIRPUSH ITS AFFILIATES, ITS ADVERTISERS, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, AND CONSULTANTS, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE LKQD TECHNOLOGY OR TO THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500 USD).
Publisher and Airpush agree to arbitrate any dispute arising from this Agreement or relating to the its use of the LKQD Technology, Site, and ads provided by Airpush, except that Publisher and Airpush are NOT required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of any Intellectual Property Rights. ARBITRATION PREVENTS A PARTY FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. Publisher and Airpush agree: (a) to notify each other of any dispute within thirty (30) days of when it arises; (b) to attempt informal resolution prior to any demand for arbitration; (c) that any arbitration will occur in Los Angeles County, California; and (d) that arbitration will be conducted confidentially by a single arbitrator in accordance with the Expedited Procedures of the American Arbitration Association (“AAA”) (Rules E-1–E-10). The state or federal courts in Los Angeles County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by this Agreement and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, Publisher and Airpush will not commence against the other a class action, class arbitration or other representative action or proceeding.
(a) Termination by Airpush. Notwithstanding any of the terms of this Agreement, Airpush reserves the right, without notice and in its sole discretion, to (a) terminate Publisher’s license to use the LKQD Technology; and (b) block or prevent Publisher’s future access to, and use of the Airpush or LKQD Technology. Publisher’s license to use the LKQD Technology may also be terminated without notice and in Airpush’s or LKQD’s sole discretion if Publisher’s right to use the LKQD Technology or account is cancelled, not registered or terminated. Airpush may discontinue Publisher’s access to the LKQD Technology or terminate its agreement with LKQD at any time, in which case this Agreement shall terminate automatically without notice.
(b) Termination by Publisher. Publisher may terminate this Agreement by ceasing use of the LKQD Technology and deleting all copies of the LKQ Technology in Publisher’s possession or control and informing Airpush of the foregoing at least two (2) days prior in writing at firstname.lastname@example.org, with subject line “TERMINATION NOTICE”. In the event of the termination of this Agreement for any reason: (i) the license granted to Publisher in this Agreement will terminate; and (ii) Publisher must immediately cease all use of the Airpush Technology and destroy or erase all copies, full or partial, of the Airpush Technology in Publisher’s possession or control.
(c) Modification or Discontinuance by Airpush. Airpush reserves the right to modify or discontinue, temporarily or permanently, the Airpush services, or any features or portions thereof, without prior notice. Publisher agrees that Airpush will not be liable for any modification, suspension or discontinuance of the Airpush services or LKQD Technology, or any part thereof.
(d) Enforcement. In addition to all of Airpush’s rights and remedies available under Airpush terms, at law or equity, if Airpush suspects that Publisher’s Application violates its policies or these terms, Publisher’s Application may be suspended from making ad calls, may be terminated, or may no longer be accepted in the Airpush network or be able to use the LKQD Technology. Airpush may also suspend other Applications by Publisher for further investigation, terminate Publisher’s account, and decline to accept future Applications from Publisher to participate in the Airpush network or use the LKQD Technology.
(a) Amendment. This agreement may be amended through a mutually executed written amendment.
(b) Nonwaiver. Any failure by Airpush to insist upon or enforce performance by Publisher of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and shall remain in full force and effect.
(c) Survival. The respective rights and obligations of the parties under Sections 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15 shall survive any termination or expiration of this Agreement.
(d) General. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. Publisher may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of Airpush. Any attempted assignment in violation of the foregoing will be void. Without notice to Publisher, Airpush may assign or transfer this Agreement, to an affiliate or in connection with a merger, acquisition, divestiture, spin off, change of control, corporate reorganization or similar such transaction or sale of all or substantially all of its assets related to this Agreement. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee. If any provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. In case of any discrepancy between this Agreement and any other terms and conditions, this Agreement shall prevail. This Agreement does not alter in any way the terms or conditions of any other agreement Publisher may have with either LKQD or Airpush for products, services or otherwise.