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Publisher Terms And Conditions

Last update February 25, 2020
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 these Terms and Conditions. Failure of the Publisher to observe the Terms and Conditions of this Agreement, the Company's privacy policy or acceptable use policy posted - each posted 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 Approval may be withdrawn by Company, at any time for any reason.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
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.

2.1. 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.
2.3. 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.

3. Monitoring.

Company may monitor, on its own or with the assistance of third parties, the Publishers for compliance with these Terms and Conditions.
3.1. 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.
3.2. 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-sub-licensable, 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
4.1. Links. 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.
4.2. Ownership. 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.

5. Non-Solicitation.

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. Fraud.

6.1. Monitor and Inactivation. Company actively monitors traffic for fraud. If fraud is detected, Publisher's account will be made inactive pending further investigation. Fraud traffic includes but is not limited to, click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported; fraudulent leads as determined and reported by Advertisers; used any incentives to procure clicks or leads; provided leads obtained other than through intended consumer action without prior written approval of Company. [For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior.]; use of fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs.
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.

7. Payment.

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 shall apply:
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.
8.2. Publisher's Privacy Policy. Publisher represents and warrants that Publisher's privacy policy permits the collection, use and transfer of data as contemplated hereby and the Program Terms.
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, incentivizing 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.
10.3.1. Publisher covenants that it shall not:
  1. 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);
  2. post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from Company;
  3. 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;
  4. use the Site in any manner other than that which is specifically contemplated herein;
  5. engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs;
  6. 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;
  7. 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
  8. 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 negative publicity.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
Conduct the web advertising campaign for Advertiser in accordance with the highest industry standards;
  1. Unless prohibited by an applicable privacy law, 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.
10.3.3 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 Publisher's or affiliate publishers' violation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act. Further, Publisher agrees 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 arising from the Publisher's breach of this Agreement or the negligent or tortious actions of the Publisher or its affiliates.

11. Privacy Policy.

Publisher shall maintain and post in a conspicuous manner on all its websites involved in the Programs, a privacy policy that clearly and adequately 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.
13.3. 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.

14. Indemnity.

14.1. Indemnity. 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 statutes, and 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.
14.3. 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. General.

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.
16.3. Waiver. 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.
16.4. Assignment. Publisher may not assign any of its rights hereunder without the prior written consent of Company, which may be withheld for any reason.
16.5. Severability. 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.
16.6. Relationship. 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.
16.8. Notice. 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.
16.9. Amendment. These Terms and Conditions may only be amended or modified by a non-electronic signature by the authorized representatives of Company and Publisher.
16.10. Publisher's use of the Program constitutes consent to be bound by these Terms and Conditions as of the effective date.

17. Definitions.

17.1. Company clients shall be defined as any advertiser who currently has products or services which are made available on the Site or which otherwise utilizes Company or its Site for purposes of promotion.
17.2. Sub-publisher or affiliate shall be defined as any legal person who promotes products or services on behalf of Publisher directly or indirectly or otherwise is part of Publisher's network.
Addendum - Data Protection Publisher Terms and Conditions
The Data Protection Terms and Conditions in this Addendum are incorporated into the Agreement between Cactus Media acting on its own behalf and as agent for each Cactus Media Affiliate; and Publisher on its own behalf and as agent for each Publisher Affiliate.
The terms used in this Agreement shall have the meanings:

1. Definitions

1.1. "Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with either Publisher or Cactus Media respectively, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
1.2. "Data Protection Laws" shall mean Directive 95/46/EC and Directive 2002/58 /EC, in each case as transposed into domestic legislation of each Member State of the European Economic Area and in each case as amended, replaced or superseded from time to time, including without limitation by the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR") and any data protection laws substantially amending, replacing or superseding the GDPR following any exit by the United Kingdom from the European Union, or, and to the extent applicable, the data protection or privacy laws of any other Member State of the EEA; or the California Consumer Privacy Act (the "CCPA")
1.3. "EEA" means the European Economic Area as well as any country for which the European Commission has published an adequacy decision as published at;
1.4. "Opt-Out Rights" means the opt-out rights of consumers provided by the CCPA. Publishers to which the CCPA applies who are doing business with California residents must provide a link titled "Do Not Sell My Personal Information" on the home page, along with a description of opt-out rights in Publisher's privacy policy.
1.5. "Restricted Transfer" means the onward transfer of Personal Data that is located in the EEA to another party in a country that is not in the EEA, where such transfer would be prohibited by Data Protection Laws in the absence of the Standard Contractual Clauses or another adequate transfer mechanism as approved by the European Commission;
1.6. "Standard Contractual Clauses" or sometimes also referred to the "EU Model Clauses" means the contractual clauses.

2. Data Processing Terms.

Cactus Media and Publisher are parties to the Agreement by which Cactus Media provides Services to Publisher and Publisher Affiliates. In performing their respective obligations under the Agreement, each party may receive Personal Data which may be subject to the Data Protection Laws. The parties shall only use or otherwise process Personal Data in accordance with the permitted purposes set forth in this Agreement and in accordance with applicable Data Protection Laws. Each party shall be individually and separately responsible for complying with the obligations under Data Protection Laws that apply to such party as applicable, in respect to certain types of Personal Data processed under the Agreement and this Addendum.

3. Consent for the Processing of Personal Data.

Cactus Media does not have a direct relationship with any Data Subject using or accessing Publisher Program. Therefore, Publisher shall be responsible for: (1) giving adequate notice and making all appropriate disclosures to Data Subjects regarding Publisher's use and disclosure and Cactus Media's processing of Personal Data; (2) providing compliant Notice of Opt-Out Rights to residents of California and complying with notification of the categories of personal identifying information being collected and the purpose for which it will be used pursuant to the CCPA; and (3) obtaining all necessary rights, and, where applicable, all appropriate and valid consents to disclose such Personal Data to Cactus Media and to permit the processing of such Personal Data by Cactus Media for the purposes of performing Cactus Media's obligations under the Agreement or as may be required by Data Protection Laws.
Publisher shall notify Cactus Media of any changes in, or revocation of, the permission to use, disclose, or otherwise process Personal Data that would impact Cactus Media's ability to comply with the Agreement, or applicable Data Protection Laws.

4. Cookies and Notifications.

As Cactus Media does not have a direct relationship with any Data Subject using or accessing Publisher Application, and in each case where consent is necessary for the use of cookies, other local storage, or collection of information from Data Subjects' devices, Publisher shall obtain, and shall ensure that its Affiliates or Subcontractors enabled by Publisher using the Services pursuant to the Agreement, obtain, the specific, informed, unambiguous, and freely given consent of each Data Subject for the use of cookies and the collection of information from Data Subjects' devices in connection with the Services. Publisher will have, and ensure that all of the Publisher Application contain, and will require that its Affiliates and Subcontractors enabled by Publisher using the Services pursuant to the Agreement, and their respective properties and platforms, contain appropriate, clear, concise, easily accessible notifications in accordance with Data Protection Laws that provide transparency to Data Subjects about what Personal Data is being processed by or on behalf of Cactus Media, the purpose of such Processing, and any other disclosures required by Data Protection Laws. In each case where Publisher uses any Personal Data sources from a third party in connection with the Services provided pursuant to the Agreement, Publisher shall ensure that such third party provide or obtain and shall ensure that such third party's own sources of Personal Data provide or obtain, the notification or consent in accordance with the requirements of this Section 5.

5. Confidentiality.

Each party shall take reasonable steps to ensure that individuals that process Personal Data are subject to obligations of confidentiality or are under an appropriate obligation of confidentiality.

6. Security.

Each party shall implement and maintain all appropriate technical and organizational measures required to ensure a level of confidentiality and security appropriate to the risks represented by the Processing and the nature of the Personal Data, and to prevent unauthorized or unlawful Processing of Personal Data, including but not limited to measures against accidental loss, disclosure or destruction of, or damage to, Personal Data.

7. Data Subject Rights.

In the event a party receives a request from a Data Subject for Personal Data related to such Data Subject as permitted by any Data Protection Laws (a "Data Subject Request"), such party shall not share, transfer, disclose, or otherwise provide or permit access to Personal Data without the other party's prior written consent. If either party receives a Data Subject Request relating to Personal Data in its control or possession, it shall promptly (and in any event within 5 days): (1) provide the other party with all information relating to the Data Subject Request; (2) give the other party a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of Personal Data and the rights of the relevant Data Subject; and (3) provide any assistance reasonable requested by such party to take such steps.

8. Personal Data Breach.

Each party agrees to notify the other party without undue delay after becoming aware of the Personal Data Breach and to take reasonable steps to mitigate the impact of any Personal Data Breach that may impact the other party. To the extent a party seeks the assistance of the other party related to the investigation of a Personal Data Breach, the other party shall reasonably cooperate with such requesting party to: (1) determine the scope and severity of the Personal Data Breach; and (2) provide timely information and cooperation as the requesting party may require to fulfill the requesting party's reporting and notification obligations under Data Protection Laws. Unless such party is required to give notice to individuals under Data Protection Laws, such party shall not give notice to individuals in respect to a Personal Data Breach, except with the prior written approval of the other party.

9. Data Protection Impact Assessment and Prior Consultation.

To the extent that a party considers that the Processing of Personal Data requires a data protection impact assessment to be undertaken or requires assistance with any prior consultations to any applicable Supervisory Authority, following written request from such party, the other party shall use reasonable commercial efforts to provide relevant information and assistance to the requesting party to fulfil such request.

10. Deletion or Return of Personal Data.

Unless otherwise required by applicable Data Protection Laws, following termination or expiration of the Agreement, or at any time following the other party's request, each party shall, at the other party's option, delete or return all Personal Data and all copies to the other party.

11. Relevant Records and Audit Rights.

Each party shall make available to the other party on request all information reasonably necessary to demonstrate compliance with this Addendum and allow for and contribute to audits, including inspections by the requesting party of any premises where the Processing of Personal Data takes place in order to assess compliance with this Addendum. The parties shall reasonably cooperate in respect of any such audit in compliance with the obligations under this Addendum. The party that receives such request shall promptly inform the requesting party if, in its opinion, a request infringes the Data Protection Laws or any other confidentially obligations. The requesting party agrees that: (1) audits may only occur during normal business hours, and where possible only after reasonable notice (not less than 20 days' advance written notice); (2) audits will be conducted in a manner that does not have any adverse impact on normal business operations; and (3) the audit will comply with standard safety, confidentiality, and security procedures in conducting any such audits.

12. International Data Transfer.

In the event that either party initiates a Restricted Transfer of Personal Data, the parties shall enter into the Standard Contractual Clauses which terms shall take precedence over those in Addendum. In the event that the Standard Contractual Clauses cease to be recognized as a legitimate basis for the transfer or Personal Data to an entity located outside the EEA, the parties shall cooperate to identify and implement an alternative legitimate basis to the extent that one is required by the Data Protection Laws. The Standard Contractual Clauses shall come into effect on the later of: (1) the data exporter becoming a party to them; (2) the data importer becoming a party to them; and (3) commencement of the relevant Restricted Transfer.

13. Warranties and Indemnity.

Each party represents and warrants that it will comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of Personal Data. Each party (an "Indemnifying Party") shall defend (through its own counsel), indemnify and hold harmless the other and the other's officers, directors, employees, agents, representatives, service providers and affiliates (an "Indemnified Party") from and against all liabilities, damages, losses, costs and expenses, including attorneys' fees and other legal expenses ("Losses"), arising directly or indirectly from or in connection with any claims, actions or proceedings involving any alleged breach by the Indemnifying Party of its representations and warranties contained herein. In any defense with respect to any matter covered by this paragraph, the Indemnified Party may participate with counsel of its own choosing at its expense and the Indemnifying Party will not agree to any settlement which imposes any obligation or liability on the Indemnified Party without such Indemnified Party's prior written consent, (such consent not to be unreasonably withheld or delayed). Each party shall promptly inform the other of any third party claims, actions, or proceedings to which it becomes aware that involves the other party as a result of this Addendum.

14. Liability.

The liability of the parties under or in connection with these Controller Terms will be subject to the exclusions and limitations of liability in the Agreement.

15. General Terms.

Any obligation imposed under this Addendum in relation to the Processing of Personal Data shall survive any termination or expiration of this Addendum. To the extent that Data Protection Laws do not apply to the Processing of Personal Data, this Addendum shall be governed by the governing law of the Agreement. Should any provision of this Addendum be invalid or unenforceable, then the remainder of this Addendum shall remain valid and in force. The invalid or unenforceable provision shall be either: (1) amended as necessary to ensure its validity and enforceability, while preserving the intent of the provision as closely as possible or, if this is not possible, (2) construed in a manner as if the invalid or unenforceable part had never been contained therein. With regard to the subject matter of this Addendum, the provisions of this Addendum shall prevail over the Agreement with regard to data protection obligations for Personal Data of a Data Subject under Data Protection Laws.