Publisher Terms And Conditions
Last update October 15, 2013
The following are the terms and conditions governing your (hereinafter "Publisher") relationship with Cactus Media, a registered d/b/a of
Search Cactus, LLC (hereinafter "Company") and the use of the Company website (hereinafter "Site"). Publisher agrees to use the Site and any additional services
offered by Company only in accordance with these Terms and Conditions. Company reserves the right to make changes to the Site and these Terms and Conditions at
any time. Publisher's continued use of the Site after any such modification and notification thereof (which may be provided by e-mail to the email address
provided in the course of Publisher's registration with Company) shall constitute Publisher's consent to such modification.
1. Approval of Publisher.
Registration with Company shall not confer any right on Publisher to market or promote any Programs (as defined under section 2) made available by Company
on the Site on behalf of its clients (the "Advertisers"). Participation by Publisher in the Company Site and Services is subject to review and approval by Company.
All prospective Publishers must be approved by Company before they can become Publishers. Approval requires meeting the criteria listed under section 1.1 below,
however approval is not automatically granted upon fulfillment of said criteria. Company reserves the right to withhold or refuse approval for any reason or for
no reason. Once Publisher has been approved, Publisher's continued right to participate is conditioned upon Publisher's ongoing compliance with the terms and
on Company's Site will disqualify Publisher from participating in the Program. Publisher shall promptly notify Company in the event of a material change in
its business practices or strategy. Approval may be withdrawn by Company, at any time for any reason.
1.1. Minimum Eligibility Requirements.
All Publisher's websites, affiliated websites and e-mail distribution lists (collectively the "Media") must continually meet the following criteria, at a minimum:
- 1.1.1 All Publishers that wish to send advertisements via email must have the prior written consent of the consumer or recipient to send such
advertisement in the manner in which it is sent and each Publisher shall maintain records evidencing such consent including, without limitation:
(h) screen shot or non pre-populated check the box consent along with URL for consent page and consumer’s IP address where applicable; and
(i) any other information collected. Publisher will supply such records to Company within one (1) business days of request therefore.
- 1.1.2 Company prohibits the sending of advertisments via SMS/Text unless approved in advance, in writing, by an authorized representative of Company.
Company further prohibits the sending of advertisements through any device that is considered an ATDS as defined in the Telephone Consumer Protection Act
of 1991 as revised ("TCPA").
- 1.1.3 Unless otherwise approved in writing by Company, Publishers may not offer incentives to users as means to enhance the performance of any
Program (as defined below); incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;
- 1.1.4 Publisher websites must be fully functional at all levels;
- 1.1.5 Publisher must comply with state and federal laws and regulations including but not limited to, the Controlling the Assault of Non-Solicited
Pornography and Marketing Act ("CAN-SPAM" of 2003, 47 U.S.C. 7701-7713, as revised, including, but not limited to all Federal Trade Commission Regulations
related to the CAN-SPAM Act, 47 CFR Part 316, in effect at the time Publisher sends any commercial message using any of Company's Programs as defined in
Section 2.1 of these Terms and Conditions;
- 1.1.6 Any communications, disclosures, or advertisements sent by Publisher must also comply with the Telephone Consumer Protection Act of 1991,
47 U.S.C. 227 (“TCPA”), as revised, including, but not limited to all Federal Communications Commission Regulations related to the TCPA and all other
rules and regulations issued under the TCPA by the FCC and other federal agencies in effect at the time Publisher sends any commercial message using any
of Company’s Programs as defined in Section 2.1 of these Terms and Conditions.
- 1.1.7 Publisher must comply with all local, state, and federal laws, regulations, decres=es, codes, ordinances, resolutions, and other acts of any
governmental authority, including, but not limited to, all laws applicable to these Terms and Conditions, the Programs, or any laws to which Publisher is subject.
- 1.1.8 Spawning process pop-ups are prohibited;
- 1.1.9 Such other criteria as Company may from time to time determine, in its sole discretion.
1.2. Publisher Website Content.
The content of Publisher's Media shall be subject to Company's subjective approval and must comply with all applicable laws and regulations (including all
laws respecting intellectual property rights) and, in any event, shall not include the following: (a) Pornographic material, including any material appealing
to the prurient interests; (b)Racial, ethnic, political, hate-mongering or otherwise objectionable content; (c) Investment, money-making opportunities or
advice not permitted under law; (d) Gratuitous violence or profanity; (e) Material that defames, misrepresents, abuses, or threatens physical harm to others;
(f) Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.; (g) Software Pirating;
(h) Hacking or Phreaking; (i) Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic;
(j)infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other
music-related rights, or any other right of any third party; (k)Any illegal activity whatsoever.
2. Use of the Site.
The Site allows Company to post offers of advertising programs sponsored by Company or its affiliates on the system ("Program(s)"). The Programs will specify
the amount and terms under which Publisher will receive payment when the applicable Program's requirements are fulfilled. Compensation is derived from a
specified event ("Event") identified in a Program, such as clicks, click-through, sales, registrations, impressions and leads. If Publisher accepts a Program,
Publisher agrees to place that Program's advertising creative (including the subject and from lines, the Advertiser CAN-SPAM disclosures, any applicable TCPA
disclosures, and any other disclosures required by state and federal law) ("Ad") on Publisher's Media. Publisher shall display the Ad exactly as it appears
on the Site and will not alter it in any way. Failure to adhere to this requirement may, in addition to all other remedies available to Company, result in
termination of Publisher. Company may change a Program at any time, upon reasonable advance written notice to Publisher. Company is responsible for displaying
and administering all active Programs and tracking the payments owed.
2.2. Special Rules Governing Email Campaigns.
- 2.2.1. In the event that Company or Publisher receives a complaint from any recipient of a Program transmitted by Publisher, upon Company's request
Publisher will immediately provide Company with appropriate records verifying that recipient's consent to receive email transmissions from Publisher.
Such records include, but may not necessarily be limited to, the Internet address of Publisher's opt-in/opt-out website, the date of the recipient's action,
Indemnification provisions of Section 14 herein shall apply.
- 2.2.2. Publisher may not use an advertiser's name (including any abbreviation thereof) in the originating email address line or subject line of any
- 2.2.3. No Misleading Headers or Other Masking of Email Origin. An email may not include falsification of header information, false registrations
for domain accounts, email accounts or IP addresses used in connection with email ads, and retransmissions of an email ad for the purpose of concealing its
origin. Publisher and/or their email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was
accessed without authorization.
- 2.2.4. Subject lines may not be false or misleading such that it would likely mislead a reasonable recipient as to the contents or subject matter of
the message. Publisher may only use approved Subject Lines available provided by Company or Subject Lines for which Publisher has documented approval from
Company. The subject line must accurately represents the product or service depicted within the email.
- 2.2.5. Email Ads Must Contain Clear Identification. Messages containing advertisements or solicitations must identify themselves as such, and do
so by "clear and conspicuous" means. Further, the sender must identify itself as the initiator and sender of the email including company name, email and
- 2.2.6. Effective Method of Opting Out of Future Mailings. Senders of commercial emails must give recipients an effective means of requesting not
to receive future email ads from that sender. At a minimum, the publisher must give the recipient the ability to send a reply message to unsubscribe, opt
out via postal letter and provide a functioning unsubscribe link that must remain in operation for thirty (30) days from the date of the original email
transmission and within the body of the email, include a valid physical street address associated with the sending party that received the opt-in.
- 2.2.7. All unsubscribe requests must be adhered to within ten (10) business days from their receipt. You may not sell or transfer an email address
once someone has opted out of receiving future communications, whether from only the advertiser or globally.
- 2.2.8. No Random or Invalid Generation of Email Addresses. Publisher is responsible for knowing the source of its email list. Email addresses may
not be obtained by the use of a program for random generation of email addresses, and/or "scraping" websites or online services. Publisher must have full
opt-in data for all recipients in its database.
- 2.2.9. Use only email addresses with the name of the sending party that received the opt-in, and not use the non-sending party's name in any
mail-from or reply-to email addresses (e.g. "from" lines need to accurately identify the sender of the email); and reply-to address must be a functioning
email address where sender can be contacted.
- 2.2.10. Publisher agrees that prior to mailing any campaign it will download the most recent suppression file(s) for any particular campaign and,
for that campaign, will suppress all email addresses within its database that are found on such list. In addition, for any campaigns that include a domain
suppression list, Publisher agrees that prior to mailing the campaign it will download the most recent domain suppression list for any particular campaign and,
for that campaign, will suppress all domains within its database found on such list. Publisher agrees that it will download and remove the domains located
on the FCC's wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in all mailings. Publisher further
warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list and that domain names
contained therein will be removed before sending any mailings.
2.3. Special Rules Relating to Mobile Service Commercial Messages.
A mobile service commercial message or “MSCM” is an email message sent to an email address on an Internet domain of a wireless carrier. Any MSCM’s sent by
Publisher or its affiliates must comply with the CAN-SPAM Act and related rules and regulations in effect at the time such message is sent; and must comply
with the TCPA and all related rules and regulations in effect at the time such message is sent. This includes: (i) disclosure that the message is an
advertisement or solicitation; (ii) accurate “to” and “from” lines; (iii) disclosure of the name and address of the sender and the sender’s accurate contact
information to allow the recipient to opt-out; and a disclosure that the recipient can opt out of future commercial messages in the future. Compliance with
the Mobile Marketing Association Best Practices is required.
Company may monitor, on its own or with the assistance of third parties, the Publishers for compliance with these Terms and Conditions.
Compliance with Unsubscribe Requests. All Publishers will be monitored by Company (or a third party retained by Company for such purposes) for compliance
with applicable legal requirements, with respect to honoring unsubscribe requests.
Each unsubscribe list furnished to a Publisher shall be separately and technologically identified so that Company will be able to ensure that each Publisher
is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law. Publisher must not send further emails to
names already on or newly added to the unsubscribe list. Publisher must scrub against unsubscribe list at least every three (3) days.
4. Services, License and Intellectual Property
Company grants Publisher a revocable, non-transferable, non-sublicensable, non-exclusive limited license to use the Site (including any Ads posted thereon)
and any data, reports, information or analyses arising out of such use (the "Site Data") solely for the purpose of marketing or promoting the Programs hereunder
and subject to these Terms and Conditions and the applicable Program Terms. If a Publisher also maintains its own network of publishers, it is authorized to
distribute company's offers to sub-publishers provided that Publisher shall ensure and require that all sub-publishers comply with the material terms of this
Agreement and further provided that such sub-publisher has represented to Publisher that: (i) the content of its site(s) are not libelous, defamatory,
infringing, pornographic, or offensive to the general public, (ii) all right, title and interest in the Offer is exclusively owned by Company and that
sub-publisher has no right other than the limited right to display the Offer and Creative as sublicensed by Publisher, and (iii) such sub-publisher will not
modify or alter the Offer or Creative in any manner. If a Publisher or sub-publisher fails to adhere to the foregoing requirement, in addition to any other
remedies available to Company, Publisher shall forfeit its rights to any amounts owed by Company to Publisher. Publisher acknowledges and agrees that Publisher
does not have, nor will it claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof,
or any content provided on the Site (including the Ads). Publisher may only access the Site via web browser, e-mail or in a manner approved by Company.
Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links,
pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service. In addition,
Publisher acknowledges that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary
to and owned by Company. If instructed to do so by Company and/or if Publisher shall be terminated by Company, Publisher will immediately destroy and
discontinue the use of any Company data, including Site Data, and any other material owned by Company or the Advertisers.
Publisher agrees to use the Links in the exact form delivered to Publisher. Publisher agrees not to modify, alter, delete, or adapt the Links in any manner
without Company's written approval. Links must be served from Company server. Publisher shall not take any actions to impede the action of or to disable any
such links. Publisher agrees, if request by Company, to modify or alter Links or Tracking devices in the manner requested by Company. Publisher further agrees
that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by Company in accordance with the previous sentence.
Company owns all rights, title, and interest to Links and user data collected and derived through the activities countenanced pursuant to this Agreement.
Company may choose to imbed certain data mining tools within Links from time to time ("Data Miners"). Any data derived by any such Data Miner shall be the sole
property of Company. Company may, from time to time, opt to share data derived from Data Miners with Publisher to help Publisher optimize the quality of
leads generated from Publisher's activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under
this Agreement. If Company does share data derived from Data Miners with Publisher, Publisher agrees that this data will be used solely by Publisher for
the purposes for which it is provided to Publisher and will not be shared by Publisher with any other third party or entity without the written approval of
Company. Should Company choose to provide advertising creative content, web design services or other web content of any type ("Web Content") to Publisher,
Publisher shall use such Web Content: (a) in exactly the form that it is delivered to the Publisher by Company without modification unless approved by us
in writing; (b) only in the manner expressly permitted by Company in writing and only until Company shall request that Publisher discontinue its use of such
advertising creative, at which time Publisher shall discontinue such use within two (2) business days of being requested by Company to do so.
4.3. Confidential Information.
Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing
the other party's Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's
performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by
applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the
disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any
unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement "Confidential
Information" includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service,
products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding
the foregoing, Publisher agrees that Company may divulge its personal and/or otherwise Confidential Information to an Advertiser, agency, legal or regulatory
authority, person or entity relating to investigations, claims or actions that Publisher has violated this Agreement or any applicable law or regulation.
Publisher agrees that neither Publisher nor any sub-publishers or affiliates will approach or attempt to engage in a contract with any of Company's clients
(each such client, individually a "Client" and all such clients, collectively "Clients") directly or indirectly via a Client's Ad agency, broker or any
other person or entity. Company will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as a
Company Client so as to aid Publisher in its efforts to comply with the non-solicitation provisions of this Agreement. Because Company will be irreparably
harmed by Publisher's conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy
for any such conduct. Publisher agrees that Company shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or
conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violative conduct by Publisher.
6.1. Monitor and Inactivation.
Publisher agrees that neither Publisher nor any sub-publishers or affiliates will approach or attempt to engage in a contract with any of Company's clients
(each such client, individually a "Client" and all such clients, collectively "Clients") directly or indirectly via a Client's Ad agency, broker or any other
person or entity. Company will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as a Company
Client so as to aid Publisher in its efforts to comply with the non-solicitation provisions of this Agreement. Because Company will be irreparably harmed
by Publisher's conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any
such conduct. Publisher agrees that Company shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or conduct in
violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violative conduct by Publisher.
If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre-population of forms or mechanisms
not approved by Company or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by Company, or is
found by Company to have committed any type of fraud, Publisher will forfeit its entire commission for all programs and its account will be terminated.
In addition, in the event that Publisher has already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from
future earnings or to demand re-imbursement from Publisher.
6.2. Adware and Spyware prohibited.
Publisher shall at no time, engage in, disseminate, promote or otherwise distribute, any Company Publisher marketing campaign through the use of contextual
media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable). This prohibition
applies equally to Publisher and any of its business Publishers, publishers, etc. In the event that Company discovers that Publisher is engaging in,
disseminating, promoting or otherwise distributing, any Company Publisher-related contextual marketing campaign which results in a violation of the Agreement,
then Company may, in its sole discretion, terminate this Agreement and immediately halt any and all Company Publisher-related contextual marketing campaigns,
making payment only on legitimate earnings of Publisher as accrued through the date and time of termination. Publisher agrees and acknowledges that if it
violates its obligations under this Addendum and/or the Agreement, Company shall be entitled to seek: (i) injunctive relief without the requirement of
posting a bond; and/or (ii) any and all other remedies that Company may have at law or in equity.
Publisher will be paid per the terms of each Program. Company shall pay any amounts due approximately twenty-five (25) days after the end of each month,
less any taxes required to be withheld under applicable law, provided that Company may, in its discretion, withhold payments until such time as the Advertiser
has paid Company for any Program. In addition to any other remedies that may be available to Company, in the event of any breaches by Publisher of these
Terms and Conditions, Publisher shall forfeit its rights to any amounts owed by Company to Publisher. Company reserves the right to reduce any payments
owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. Company
shall compile, calculate and electronically deliver data required to determine Publisher's billing and compensation. Any questions or disputes regarding
the data or payout provided by Company needs to be submitted in writing within five (5) business days of receipt, otherwise the information will be deemed
accurate, final, and approved as such by Publisher. Should a dispute or question arise within the five business day period, Company will in good faith
analyze the information, and will then in its sole discretion, determine whether any changes shall be made. Company will not pay for any Events that
occur before a Program is initiated, or after a Program terminates. Invoices submitted to Company and payments made to Publisher shall be based on the
Events as reported by Company. Company will not be responsible to compensate Publisher for Events that are not recorded due to Publisher's error.
Company will require a Publisher to provide a W-9, and similar such information, as a condition to payment.
8. Special Terms for Co-Registration Campaigns.
With respect to Publishers who are running co-registration campaigns to generate leads ("Leads") for Advertisers, the following specific terms and conditions
8.1. Approval of Publisher's Site(s).
No Program may go live until such time as Company, and if necessary the applicable Advertiser, have approved, in writing, (a) all sites to be used by the
Publisher for each Program and (b) the transfer of leads in the form of either a successful post for real-time transfer or approval of the test file for
batch or FTP files.
8.3. Scrubbing Leads.
Each Program shall have its own criteria for determining the validity of a lead (the "Lead Requirements"). Company may detect and track all Invalid Leads,
which are determined on a real-time basis. Company shall only pay for leads deemed valid by this system. At the sole discretion of Company, leads may also
subsequently be deemed invalid for (a) fraudulent activities including but not limited to changing approved lead generation forms, publishing an offer on
an unapproved site, utilizing automated software or manpower to complete co-registration forms, incentivization of co-registration forms and/or a
publisher's inability to provide the user IP and time/date stamp for each lead or (b) non-compliance with co-registration programs including but not
limited to exceeding lead caps as communicated by a Company Manager and/or going live with a co-registration offer prior to written approval of a
creative and data transfer by an Company Manager.
8.4. Use of Leads.
Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of Company or its Advertiser. Therefore, other than
providing the Leads to Company for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its
own purposes. All right, title and interest in the Leads shall vest exclusively in Company or its Advertisers.
8.5. No Alteration of Approved Co-Registration Forms. Publisher may not, in any way, alter or modify the Co-Registration Forms, without
the prior written consent of Company.
9. Term and Termination.
Either party may terminate this Agreement on three (3) business days' advance notice to the other party. In the event either party in good faith believes
that the other party is in violation of applicable law or in breach of any terms of this Agreement, such party shall have right to terminate the Agreement
immediately upon written notice to the other party. Company further reserves the right to terminate this Agreement and Publisher's participation in the
services hereunder without prior notice to Publisher.
Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Publisher must immediately cease all
advertising activities. All moneys then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations
contained in Sections 10, 13, and 14 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations
accruing prior to the termination date shall survive until fully performed. If Publisher’s account is closed or this Agreement is terminated by Company
due to suspected or actual fraud of the Publisher, then any monies due to Publisher shall be forfeited to Company.
10. Representations and Warranties/Covenants.
10.1. Mutual Representations.
Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms
and Conditions; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and
(c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee,
representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.
10.2. Publisher Representations.
Publisher represents and warrants as follows:
10.3. Publisher Covenants.
- 10.2.1. Publisher's Media is currently in compliance with all applicable State and Federal laws (including without limitation the CAN-SPAM Act,
effective January 1, 2004 and all revisions thereto (the "CAN-SPAM Act"); the Telephone Consumer Protection Act of 1991 and all revisions thereto (“TCPA”),
and all rules and regulations relating to same; and all state consumer protection laws in any state where Publisher conducts business.
- 10.2.2. Publisher's Media does not contain or promote or links to another website that contains or promotes, libelous, defamatory, abusive, violent,
prejudicial, obscene, sexually explicit or illegal content, product, service or activity;
- 10.2.3. Publisher's database consists of only permission based opted-in e-mail addresses in accordance with CAN-SPAM and where such email is an MSCM,
disclosure and consent rules of the TCPA must be strictly followed.
- 10.2.4. Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on
10.3.1. Publisher covenants that it shall not:
10.3.2 Publisher Affirmatively Covenants, that it shall:
- send unsolicited commercial e-mail (SPAM) (i.e., it will send commercial e-mails in connection with any Programs to only those e-mail addresses associated
with a recipient who has consented to receive such commercial e-mails);
- post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing
- promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or
otherwise objectionable or illegal content, or any other content referenced in paragraph 1.2;
- use the Site in any manner other than that which is specifically contemplated herein;
- engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs; and
- while an approved Publisher, and for one hundred eighty (180) days thereafter, participate in any performance based advertising relationship with any
Advertiser within Company's network, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the
reasonable satisfaction of Company. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder,
Company will be entitled to damages in the amount of forty-five percent (45%) of the gross revenues resulting from sales conducted by Advertiser
through the advertising or marketing efforts of Publisher;
- engage in, disseminate, promote or otherwise distribute, any Company marketing campaign through the use of contextual media, specifically downloadable
software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable). This prohibition applies equally to Publisher and
any of its business affiliates, publishers, etc. In the event that Company discovers that Publisher is engaging in, disseminating, promoting or otherwise
distributing, any Company Publisher-related contextual marketing campaign which results in a violation of the Agreement, then Company may, in its sole
discretion, terminate this Agreement and immediately halt any and all Company Publisher-related contextual marketing campaigns, making payment only on
legitimate earnings of Publisher as accrued through the date and time of termination. Publisher agrees and acknowledges that if it violates its
obligations under this Addendum and/or the Agreement, Company shall be entitled to seek: (i) injunctive relief without the requirement of posting a
bond; and/or (ii) any and all other remedies that Company may have at law or in equity; and
- place an Offer with inappropriate content, which includes, but is not limited to, content that (i) promotes the use of alcohol, tobacco or illegal
substances, nudity, sex, pornography, adult-oriented content such as phone sex or escort services, expletives or inappropriate language; (ii) promotes
gratuitous violence, abuses or threatens physical harm; (iii) promotes illegal or unethical activity, racism, hate, "spam," mail fraud, gambling,
sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes use of illegal substances or activities such,
how to build a bomb, counterfeiting money and software pirating (e.g., Warez, Hotline); (v) is libelous, defamatory, infringing, false, misleading or
contrary to public policy; (vi) is otherwise prohibited by Federal or state law; and/or (vii) may bring Company and/or its associated Advertisers
- engage in any spoofing, redirecting or trafficking from adult-related websites in an effort to gain traffic or websites that are point, lottery or
rewards based and encourage users to click on Offers or use Offers to generate revenue for users to win points, get rewards, or other incentives are
prohibited unless expressly approved in writing from Company.
- violate any third party terms and conditions, which includes, but is not limited to (i) unauthorized use of a third party web site for commercial
gain or post bulletins to non-owned account.
- use deceptive or misleading practices such as the use of spyware, adware, devices, programs, robots, iframes, hidden pictures, redirects, spiders,
computer scripts or other automated, artificial or fraudulent methods designed to appear as if a consumer is generating a lead.
- use any deceptive form of advertising which includes, but is not limited to, phishing, sending an email to an individual falsely claiming to be
an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used
for identify theft of other activity.
Publisher acknowledges that any breach of any of the foregoing representations and covenants may, in the sole discretion of Company, result in the
immediate suspension or termination of Company's relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore
owed to it by Company. The foregoing rights shall be in addition to any other remedies available to Company including, but not limited to the Company’s
right to indemnification set forth in Section 14 hereof. Publisher acknowledges and agrees that Company shall not be responsible for the Advertisers'
violation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act and that Publisher shall be liable to Company for all
costs of defense for claims made against Company, including payment of fines, legal fees, court costs, alternative dispute resolution fees, judgments,
settlements, or voluntary payments made to assist in resolution of any claim.
- Conduct the web advertising campaign for Advertiser in accordance with the highest industry standards;
- Provide within one (1) business day after request therefrom, the IP Information, together with such other related information that Company may request.
Failure to provide such information may result in termination or suspension of the Publisher and/or the deactivation of all links in any Programs
downloaded by Publisher.
describes how consumer information is collected and used. Publisher shall include on its websites any applicable Consent Forms and Disclosures.
12. Customer Information; Non-Disclosure; Confidentiality.
All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of Company, its affiliates, publishers
and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate,
sell, distribute or commercially exploit any such proprietary information in any manner. Publisher shall maintain such data in a secure manner,
consistent with industry standards.
13. Limitation of Liability; Disclaimer of Warranty.
13.1. Unless otherwise provided in this agreement, in no event shall Company or any Publisher be liable to the other for any lost profits or
any special, incidental, consequential, exemplary, punitive or other indirect damages of any nature, for any reason, whether based on breach of contract,
tort (including negligence), or otherwise and whether or not either has been advised of the possibility of such damages.
13.2. DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, COMPANY CANNOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS
IN SERVICE REGARDING THE LINKS OR OUR SERVICES. WITHOUT LIMITING THE ABOVE, THE LINKS, OUR CLIENT SITES AND ANY OTHER MATERIALS PROVIDED TO PUBLISHER
ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND COMPANY MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND
EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NONINFRINGEMENT, and:
(A) MERCHANTABILITY, CLIENTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS THEREIN, (C) THAT
A PARTY'S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE FACE OF ALL ATTACKS, (D) REGARDING CORRECTNESS, ACCURACY, OR
RELIABILITY OF ANY INFORMATION SET FORTH THEREIN OR THEREON, OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY'S "INFORMATION" (WEB SITE). ALL
'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK, AS TO SATISFACTORY
QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER. SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS
OF IT MAY NOT APPLY TO YOU.
13.3. Company makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature
of any Ad or Program made available on the Site, or any product or service advertised in connection therewith. Company has no liability to Publisher
for unapproved materials, including all copy, images, URL names, and search terms used by Publisher to promote the client partner. Company makes no
representations whatsoever about any other website which Publisher may access through the service. When Publisher accesses a website that is not
associated with and independent from Company, Publisher acknowledges that Company has no control over the content of that website. Furthermore, a
link to a non- Company website does not mean that Company endorses or accepts any responsibility for the content or the use of such website.
It is Publisher's sole responsibility to take precautions to ensure that websites, downloads, attachments, and other such files are free of such
items as Trojan horses, worms, viruses, and other items of a destructive nature.
Publisher irrevocably consents, covenants, promises, and agrees to defend, indemnify, and hold harmless Company, the Advertisers, and their respective
affiliates, members, shareholders, officers, directors, employees, agents, successors and assigns from all claims, suits, losses, demands, liabilities,
damages, costs, and expenses (including without limitation reasonable attorney's fees and expenses) (collectively "Claims") arising from any breach
by Publisher or one of its affiliates or sub-publishers of any of these Terms and Conditions of any Program Terms or involving a claim of libel, slander,
defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement, or other infringemenet or misappropriation
of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation
(including but not limited to the TCPA and the CAN-SPAM Act, state statutes regulating commercial emails, state consumer protection and privacy stattutes,
ald any or all other claims arising from or relating to Publisher’s use of the Program (the “Indemnified Matters”).
14.2. Notification of Legal Action.
Publisher will immediately notify Company of any current, impending, or potential legal action against it by a third party for matters relating to email,
email complaints, email deployment, and violations of CAN-SPAM, TCPA, FCC and FTC Rules and Regulations, or any State Consumer Law. Company will have
the right, to participate in any defense under this Section with counsel of its own selection and has the right to approve or disapprove any potential
settlement of any Claims or Indemnified Matters Publisher hereby acknowledges that the Advertisers are intended third party beneficiaries of the
foregoing indemnification obligation.
Upon notice of any Claim made against Company relating to a breach by Publisher or one of its sub-publishers or affiliates of these Terms and Conditions,
any Insertion Orders or ancillary documents between Company and any Publisher, sub-publisher, or affiliate, Company shall notify Publisher in writing
that it seeks Indemnification as set forth in Section 14 herein. Upon receipt of such notification, Publisher agrees, warrants, and represents that
it will indemnify and hold Company harmless for such claim according to this Section 14.
15. Force Majeure.
Neither party shall be deemed in default of these Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach
are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies,
or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the
other party written notice thereof within three (3) business days of such event or occurrence.
16.1. Entire Agreement.
These Terms and Conditions, together with the terms for each of the Programs constitutes the entire agreement between the parties and supersedes all
prior agreements or understandings between the parties. These Terms and Conditions supersede any and all prior understandings, and written or oral
agreements between the parties to this Agreement with respect to its subject matter, except for I/O’s entered into after the effective date of these
Terms and Conditions.
16.2. Controlling Law.
These Terms and Conditions, the terms of the Programs and the relationship contemplated thereby, shall be governed by the laws of the United States and
the State of Michigan, without giving effect to principles of conflicts of law. Each party, to the extent permitted by applicable law, hereby irrevocably
and unconditionally (a) submits to the general jurisdiction of the federal and state courts located in Oakland County, Michigan; (b) agrees that any
action or proceeding concerning this agreement will be brought exclusively in such courts; and (c) waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that such action or proceeding in any such court was brought in an inconvenient
court and agrees not to claim or plead the same.
No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.
Publisher may not assign any of its rights hereunder without the prior written consent of Company, which may be withheld for any reason.
In the event that any provision of these Terms and Conditions is found invalid or unenforceable pursuant to any judicial decree or decision, such
provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of these Terms and Conditions shall remain valid
and enforceable according to its terms.
The parties agree that Company is acting as an independent contractor in performing the Services and that the relationship between the Company and
Publisher shall not constitute a partnership, joint venture or agency. Neither Company nor any of Company's employees or agents (collectively referred
to herein as the "Employees") (i) is an employee, agent or legal representative of Publisher, or (ii) shall have any authority to represent Publisher
or to enter into any contracts or assume any liabilities on behalf of Publisher. Company retains all the rights and privileges of sole employer of
its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees. Neither Company nor
any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.
16.7. No Publicity.
Publisher may not make any mention of Company or any Company client in any publicity materials advertising or otherwise presenting information on
your company and your services, including without limitation listing Company or any of its clients in your customer lists, without the written consent
of Company, whose consent may be withheld for any reason or for no reason.
Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered
in person; (ii) upon transmission when delivered by verified facsimile transmission or verified e-mail; or (iii) when delivered by registered or
certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to (a) Publisher at the address
provided in Publisher’s registration, and (b) Company at 176 N. Old Woodward Ave., Birmingham, MI 48009.
These Terms and Conditions may only be amended or midified by a non-electronic signature by the authorized representatives of Company and Publisher.
Publisher’s use of the Program constitutes consent to be bound by these Terms and Conditions as of the effective date.
17.1. Company clients shall be defined as
17.2. Sub-publisher or affiliate shall be defined as