Affiliate and Publisher Terms & Conditions

Preamble

These terms and conditions (the “Agreement’), together with the schedules attached, and any amendments to those schedules, governs your participation as a member (the “Publisher”) of the Digital Market Media Network (the “Program”). The Publisher covenants and agrees to be bound by this Agreement, and the schedules attached, as amended by Digital Market Media (“DMM”) from time to time.

Table of Contents

  1. Definitions
  2. The Program
  3. Offer and Placement
  4. Restrictions
  5. Fraud and Non-Compliant Activity
  6. Payment/Reporting
  7. Covenants, Representation and Warranties
  8. Non-Competition
  9. Disclosure of Information
  10. Idemnification
  11. Disclaimer
  12. Limitation of Liability
  13. Termination
  14. General

1.  DEFINITIONS

1.1   Client” means a client of DMM.
1.2   Advertising Material” means banners, creatives, keywords, product/service descriptions, subject and from lines, trademarks, logos, images, text and links.
1.3   Publisher” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.4   Campaign” means the services performed by the Publisher in respect of an Offer.
1.5   Offer” means a promotional offer published by DMM on the Program Site setting out an advertising offer on behalf of a Client and containing Advertising Material and any additional terms and conditions as the Client and DMM, in their discretion, consider necessary from time to time.
1.6   Program Site” means the website for the Program operated by DMM and situated at https://digitalmarketmedia.invoca.net/login or any site designated for this purpose by DMM.
1.7   Publisher” means the person or entity contracting with DMM and intending to be bound by this Agreement.
1.8   Sub-Publisher” means an independent third party publisher contracted by the Publisher.
1.9   Suppression List” means a list of electronic mail addresses for people who have chosen to opt-out of an electronic mail list and to whom delivery of such electronic mail may not occur.
1.10   User” means an individual with access to the World Wide Web.

2.  THE PROGRAM

2.1   DMM will permit the Publisher to participate in the Program, subject to compliance with this Agreement.
2.2   The Publisher will be issued a unique username and password to access the Program Site, neither of which may be used by any person other than the Publisher.
2.3   The Publisher may engage Sub-Publishers to distribute Offers in accordance with the Program, provided that:

  1. the Publisher has written approval from a DMM Representative to contract Sub-Publishers;
  2. a verifiable name, address and telephone number for each Sub-Publisher is delivered to DMM immediately upon request; and
  3. the proposed Sub-Publisher agrees, in form satisfactory to Digital Market Media, to abide by paragraph 2.8, 3.3, 3.4, Sections 5.4, 6, 7, 8, 9, 10 and 11 of this Agreement, the Digital Market Media Policies and any additional terms and conditions (collectively, the “Sub-Publisher Provisions”), as amended from time to time; and
  4. at no time will the Publisher engage a Sub-Publisher who, in the opinion of DMM, is likely to bring the reputation or standing of DMM into disrepute, was previously terminated from the Program or is, in the sole opinion of DMM, otherwise unsuitable.
2.4   Any breach by a Sub-Publisher of this Agreement or any Offer restrictions will be deemed to be a breach of this Agreement by the Publisher.
2.5   In connection with the Publisher’s integration into the Program, Publisher shall select a username and password combination that the Publisher may use to access the Program and reporting. Publisher shall provide DMM with accurate, complete and updated registration information and it is the Publisher’s obligation to keep the same up to date. The Publisher agrees that DMM may rely on any data, notice, instruction or request furnished to DMM by the Publisher which is reasonably believed by DMM to be genuine and to have been sent or presented by a person reasonably believed by DMM to be authorized to act on the Publisher’s behalf. Publisher shall immediately notify DMM of any known or suspected unauthorized uses of the Publisher’s account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of the Publisher’s username and password. The Publisher shall be responsible for maintaining the confidentiality of its username and password and the Publisher is responsible for all usage of the Program Site, including use by any third parties. Absent actual receipt of written notice to the contrary from the Publisher, DMM may assume that any person accessing the Program through the Publisher’s account is authorized to do so.
2.6   The Publisher has no authority to create or assume in DMM’s or DMM’s Client’s name or on its behalf any obligation, express or implied, or to act or purport to act as its agent or representative for any purpose whatsoever and the Publisher shall not hold itself out as having any such authority.
2.7   DMM’s Policies, specifications, and/or recommendations with respect to Publisher websites, email, suppression, compliance notices, email distribution lists and/or marketing channels used by the Publisher should not be construed as legal advice, or as sufficient guidelines to ensure that such websites, email, suppression, compliance notices, email distribution lists and/or marketing channels comply with applicable law. DMM does not represent or warrant that such specifications, and/or recommendations are legally compliant or appropriate. DMM assumes no obligation and hereby disclaims any liability for Publisher’s use of and/or reliance upon any such specifications, and/or recommendations.
2.8   Publisher will be solely responsible for the development, operation, and maintenance of the Publisher website and for all materials that appear on the Publisher website. Such responsibilities include, but are not limited to, the technical operation of the Publisher website and all related equipment; creating and posting product reviews, descriptions, and references on the Publisher website; the accuracy and propriety of materials posted on the Publisher website; ensuring that materials posted on the Publisher website do not violate or infringe upon the rights of any third party; and are not libelous or otherwise illegal. DMM disclaims all liability and responsibility for such matters.

3.  OFFER AND PLACEMENT

3.1   Offers will be posted to the Program Site.
3.2   DMM grants the Publisher a limited, non-exclusive, non-transferable, revocable right to download Offers from the Program Site and to display, transmit, distribute or publish the same as is necessary to perform this Agreement. The Publisher agrees not to modify, alter, misrepresent or embellish the Offer or the Advertising Materials or any part thereof in any way, directly or indirectly, without the express prior written consent of DMM. Unless authorized in writing by DMM, the Publisher shall not broker, syndicate, transfer, sublease, rent, lease, sell, resell, outsource or service any Offer, and any attempt to do so shall be null and void. Publisher shall not alter, copy, modify, take, sell, re-use, or divulge in any manner any Advertising Material or computer code provided by DMM without DMM’s prior written consent. Any part of the Offer, including but not limited to the Advertising Material, which is copied, changed or altered without prior written consent will result in non-payment and may result in termination. This license gives the Publisher no independent right to use DMM’s or its Client’s trademarks, service marks, names, logo or other intellectual property. Any breach of this license shall constitute a material breach of this Agreement. No part of the Program or Program Site may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. The Publisher may not remove any proprietary notices, trademarks, or labels contained on or within the Program or Program Site or any graphical representation thereof. The Publisher may not use, copy, emulate, clone, rent, lease, sub-license, distribute, sell, modify, decompile, disassemble, reverse engineer or otherwise transfer rights to access and use the Program or Program Site content or any portion thereof to any third party. DMM reserves any rights not explicitly granted in this Agreement.
3.3   It is the Publisher’s responsibility to check the Program Site often and to ensure the Offer or any part of the Offer that the Publisher has published matches what is posted on the Program Site, even if the Offer or any part of the Offer has been modified in the Program Site since the Publisher initially downloaded the Offer.
3.4   Where DMM has set specified dates for an Offer and/or capped delivery, Publisher shall pause each Campaign after either limitation is met. The Publisher is solely responsible for ensuring delivery and performance as specified in each Offer or IO. In no event shall DMM be obligated to pay the Publisher for any over-delivery.
3.5   From time to time, upon request by either Party, DMM and the Publisher may negotiate insertion orders (“IOs”) under which the Publisher will perform the services contemplated in this Agreement.
3.6   The Publisher agrees to undertake and complete the services as specified by the Offer and/or the IO, including all restrictions and in accordance with this Agreement and the highest industry standards.
3.7   The Publisher understands that participation in distributing Offers in the Program is not an endorsement by DMM of any Client. DMM operates the Program and provides the Offers as a neutral host. DMM is not responsible or liable for the acts, omissions, agreements or promises of or by any Client or Publisher using the Program to enter into any arrangement or otherwise work with any other person or entity.

4.  RESTRICTIONS

4.1   The Publisher shall not:

  1. incentivize or offer points, rewards, cash or prizes for any User action unless it is expressly noted that the Offer is an incentive offer;
  2. place misleading statements near any Advertising Material (i.e., “You will win $5,000”) or falsely suggest a link between DMM and a third-party;
  3. post any Advertising Materials using an unauthorized host; (d) violate guidelines of any search engines being utilized;
  4. violate guidelines of any search engines being utilized;
  5. engage in search engine spam, doorway pages, cloaking, etc;
  6. bid on any trademarked name or terms in any PPC/”keyword”/”adword”/Offer unless given express written permission by DMM
  7. use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the User;
  8. engage in offline marketing, including facsimile or telemarketing; or
  9. otherwise engage in any misleading or deceptive conduct or violate any other restrictions imposed by DMM or the Client.
4.2   Publisher shall not place any Advertising Material on websites that promote, reference or have links to:

  1. profanity, sexually explicit materials, hate, fraud, pyramid schemes, promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, content that is libelous, defamatory, infringing, false, misleading, contrary to public policy, or otherwise unlawful or that is unsuitable or harmful to the reputation of DMM or its Affiliates, in DMM’s sole discretion;
  2. software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, or torrents;
  3. illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others;
  4. personal web pages, websites under construction or without content; or
  5. promote activities generally understood as Internet abuse, including but not limited to the sending of unsolicited bulk electronic mail or the use of adware, malware or spyware.
4.3   All Advertising Material and any content used by Publishers in the promotion of any Offer must be pre-approved in writing by DMM or be obtained from DMM. If Publisher is approved by DMM to send link out traffic from a website, all Advertising Materials used to drive traffic to that website must be approved by DMM. If the Publisher disseminates any Advertising Material not approved by DMM, Publisher shall forfeit all Publisher Commissions.
Email. The Publisher covenants and agrees that neither the Publisher nor any Sub-Publisher contracted by the Publisher will, with respect to any Offer, send or cause to be sent any email except and unless use of email is expressly permitted by the Offer. Publisher shall comply with all applicable statutes, rules or regulations, including but not limited to the CAN SPAM Act of 2003, the California Business and Professions Code, and other applicable advertising laws. Publisher shall only execute Offers utilizing Opt-in email data to which Publisher has direct access, meaning the Publisher owns or has been granted custody of email data under a list management relationship and has prompt access to all Opt-in records and unsubscribe requests for all managed email addresses. Upon request by DMM, Publisher shall provide DMM the name, date, time and IP address where the User signed up or gave permission with respect to such email campaign within two (2) business days of the commencement of such email Campaign. Emails shall not contain or include a falsified header, sender, domain name or non-responsive email address. Publisher shall not:

  1. use any name other than Publisher’s, its Affiliates, or as requested by the Client in the Offer description or approved by DMM in writing;
  2. use false or misleading subject lines that attempt to disguise or conceal the content of the email of that makes any false or deceptive claims, including but not limited to claims falsely suggesting a prior relationship or that a recipient has “won” something; or
  3. send any commercial email to any person who has requested not to receive email from Publisher and/or DMM or use any name contained in DMM’s Suppression List. Every email shall contain a functioning opt out mechanism. The opt out mechanism must:
    1. contain a return email address or other Internet-based mechanism clearly displayed that enables a User to request not to receive future email messages from the Publisher;
    2. be clear, conspicuous and relay the recipient directly to the opt-out location;
    3. be active and operable for at least, thirty (30) days following the transmission of the electronic mail; and
    4. at no time be subject to any barrier preventing the recipient from submitting their electronic mail address, such as, but not limited to, a monetary cost or misleading language. A list of unsubscribing recipients as a result of email sent pursuant to Offers hereunder must be provided to DMM not less than weekly. Every email sent by the Publisher shall include a valid physical postal address of the entity principally responsible for sending the email communication, as well as the Client unsubscribe link found in the Advertising Materials. Offers provided by DMM for the purpose of email marketing will include in the Program Site a Suppression List for the Offer. The Publisher shall download the Suppression List and scrub it against their list no more than three (3) calendar days before the Publisher emails the Offer to its recipients. Publisher acknowledges and agrees that DMM is not responsible for any failure by a Client to make available or to maintain any electronic mail Suppression List for any Client. In no circumstance will the Publisher send any electronic mail to any electronic mail address listed on a Suppression List for any Offer. The Suppression List made accessible to the Publisher will be used solely for the intended purpose, as stated in this section. Indication of the Suppression List being used for any alternative purpose, including, but not limited to, leasing, selling, or emailing the Suppression List directly, gives DMM the sole discretion to terminate the Publisher’s membership in the Program immediately, cease any and all payments to the Publisher, and seek any and all remedies under law and equity. The Publisher represents and warrants that it will, within two (2) business days following receipt of an electronic mail address submitted through the opt out mechanism, or otherwise upon receipt of notice (howsoever delivered to the Publisher) from any person that an electronic mail is to be removed from the Publisher’s mailing list, remove such electronic mail address or addresses from the Publisher’s own mailing list.

Publisher understands that any breach of the foregoing by it or its Sub-Publishers automatically forfeits the right and claim to any revenue generated from such practices, and Publisher’s and/or its Sub-Publisher(s)’ account may be terminated.

4.4   DMM has a strict policy against sending unsolicited commercial email (“UCE”), commonly referred to as “Spam.” Publisher warrants and represents that all email sent under this Agreement will be to permission-based subscribers who either:

  1. have given Publishers (or a third party) express consent to allow Publishers to send them such email messages in response to a clear and conspicuous request for such consent or at the recipient’s own initiative; or
  2. with whom Publisher has a prior business relationship. Publisher further covenants and agrees to cooperate fully with any investigation DMM conducts related to this Section 4 and will send DMM all information relevant to the investigation that DMM requests within two (2) business days of such request.
4.5   Complaints. Any claims against DMM from

  1. recipients alleging that they have been spammed or
  2. DMM’s Clients that arise from the Publisher’s practices, will be directed to Publisher and Publisher shall make reasonable efforts to satisfactorily resolve any issues and cooperate with DMM by providing all available evidence. Publisher agrees that, within twenty-four (24) hours of DMM’s request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address to which Publisher sends an email:
    1. the subscriber email address used to sign-up/register for Publisher’s email list;
    2. subscriber’s IP address;
    3. date and time of subscriber’s sign-up/registration for Publisher’s email list; and
    4. location of subscriber’s sign-up/registration (i.e., what is the original source of the subscriber email address; where did the subscriber sign-up/register for Publisher’s email list). In the event of any other complaints or issues regarding a Campaign placed by Publisher under this Agreement, Publisher shall identify the parties involved (including any Sub-Publishers) and any relevant facts within two (2) business days of a request from DMM. DMM may disclose any information provided under this section as may be necessary to enforce the terms of any agreements or to protect the rights, property, or safety of DMM or others. Publisher shall promptly forward to DMM any and all complaints or inquiries regarding any DMM Offer.

5.  FRAUD AND NON-COMPLIANT ACTIVITY

5.1   If DMM determines, in its sole discretion, that the Publisher or Sub-Publisher has engaged in any activity that DMM or its Client considers to be fraudulent or which might bring the reputation or standing of DMM or its Client into disrepute either with the general public or with the Clients or potential Clients of DMM, or otherwise that the Publisher or Sub-Publisher has engaged in activities which might be considered fraudulent, DMM may, but will not be obligated to:

  1. suspend or terminate the Publisher’s membership in the Program, without notice,
  2. release to any third party information relating to the identity and location of the Publisher if required to do so in order to enforce this Agreement; and
  3. withhold all Publisher Commission for all Offers. In addition, in the event that Publisher has already received payment resulting from fraudulent activities, DMM reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher for all Commission paid.
5.2   Fraudulent and non-compliant activity includes, but is not limited to, inflating the amount of actions, sales, leads, impressions or clicks through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, programs, robots, iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an event; any action or inaction that:

  1. causes the referring URL to be suppressed or blank,
  2. inflates or lowers the conversion rate,
  3. violates any restrictions in this Agreement or the Offer,
  4. generates multiple leads from the same IP address,
  5. has conversion rates significantly higher than DMM’s average for similar Offers,
  6. places DMM’s or Client’s links on incentivized websites without DMM’s prior written consent,
  7. fails to obtain approval for Sub-Publishers,
  8. generates multiple leads using proxy servers, or
  9. any activity which is determined by the Client, in its discretion, to be fraudulent. Publisher shall not, nor shall Publisher knowingly permit any other entity or person, to establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating events, or otherwise attempt to induce Users to click on any Advertising Material through use of any other incentives, or generate traffic in a manner other than as set forth in this Agreement or an IO, in each case without obtaining DMM’s prior written approval. The foregoing merely constitutes examples of fraudulent and non-compliant activity and should not be taken as a comprehensive list of all possible fraudulent activity.
5.3   (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in emailing potential leads under this Agreement. Publisher further warrants that any new data that it acquires, regardless of its source, will be compared against the FCC’s wireless domain names list and that domain names contained therein will be removed before sending any emails.
5.4   Phone and Mobile Messaging Solicitation Obligations. For the purposes of this Section 5.4, “contact” means: (1) transmitting text messages (“texts”), or causing texts to be transmitted; or (2) initiating telephone calls, or causing telephone calls to be initiated.

  1. Publisher shall not engage in any deceptive or abusive telemarketing practices, as defined by the Federal Trade Commission’s Telemarketing Sales Rule (16 CFR Part 310). Publisher agrees that Company is under no obligation to pay for, and will not pay, for, any leads derived from violations of the Telemarketing Sales Rule (the “TSR”) or the Telephone Consumer Protection Act (15 USC §§ 6101 et seq., the “TCPA”), that liability for any violations of the TSR, TCPA, or related laws shall rest with Publisher only, and that Publisher shall indemnify Company if Company is held liable for any such violations as provided below.
  2. Publisher shall keep for at least 5 years records of all consents required under the TCPA and TSR, and all scripts used by telephone sales representatives under this Agreement. Publisher shall keep for at least 3 years all audio recordings of telephone calls placed by Publisher under this Agreement. Publisher must allow Company to inspect these records, on reasonable notice and during regular business hours.
  3. Unless Publisher has obtained the receiving party’s prior express written consent, Publisher shall not use any automated system to contact any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or send texts to any service for which the receiving party is charged for a text. Publisher shall keep records of consents in satisfaction of the TSR (e.g., 16 CFR § 310.5(a)(5)) and of this Agreement.
  4. Publisher shall not transmit text messages (“texts”), or cause texts to be transmitted, without the prior express written consent of the receiving party to receive text messages specifically from the sender.
  5. Publisher shall not contact any recipient outside of the hours established by then-current federal time-of-day requirements (16 CFR § 310.4(c)), currently between 8 a.m. and 9 p.m. local time of the recipient.
  6. Publisher shall not contact any phone number on relevant suppression lists provided by Company, populated either by specific requests for opt-outs or the national Do Not Call registry. Publisher shall record any opt-out request it receives, scrub the requester’s contact information from its lists, and refrain from contacting that individual’s phone number. It is Publisher’s responsibility to register for and obtain its own copy of Do Not Call lists from the Federal Trade Commission.
5.5   DMM may at any time audit the Publisher for compliance purposes. Publisher agrees to provide DMM with any reasonable information necessary to conduct an investigation into Publisher’s compliance with law and this Agreement.

6.  PAYMENT/ REPORTING

6.1   DMM will pay to the Publisher a commission (the “Commission”), calculated in accordance with the payment terms outlined in each Offer posted by DMM on the Program Site. All payments will be made in US funds. Receipt of Commissions by Publisher shall be considered in full and final satisfaction for Campaigns delivered by Publisher. If Publisher does not dispute the amount of Commissions within five (5) business days of receipt, such Commissions shall be deemed final and may not thereafter be disputed. Payments to Publisher in accordance with this Section will be based solely upon the records kept by DMM and reported in the Program Site and/or any other online reporting system used by DMM and audited by Clients, from time to time. DMM reserves the right to pay Commissions to the Publisher following receipt of payment from the Client in respect of such Offer published in the Program Site. DMM may, in its sole discretion and from time to time, elect to advance to the Publisher part or all of the Commissions prior to receipt of payment from the Client, but in no event will DMM be obligated to do so.
6.2   In no circumstance will DMM be obligated to pay Commissions to a Publisher unless and until the aggregate amount of the Commissions due and payable to that Publisher exceeds One Hundred ($100.00) US Dollars, or such greater amount established by the Publisher, from time to time.
6.3   DMM reserves the absolute right to withhold all or some of the amounts due to Publisher in the event DMM determines, in its sole discretion, that Publisher is in violation of this Agreement, for traffic generated by fraudulent means and/ or to offset any past due liability to DMM.

7.  INSURANCE OBLIGATIONS

7.1   Professional Liability/Errors & Omissions Liability. At all times during the term of this Agreement, Publisher will carry a Professional Liability/Errors & Omissions Liability insurance policy, with policy limits of not less than One Million Dollars ($1,000,000) per occurrence. Such insurance shall include coverage for infringement of any third party proprietary rights (including without limitation copyright and trademark) and liability under the TCPA, to the extent reasonably commercially available, as related to Publisher’s performance under this Agreement. The retroactive coverage date shall be no later than the Effective Date of this Agreement. Upon termination of this Agreement, Publisher shall either maintain active policy coverage or an extended reporting period providing coverage for claims first made and reported to the insurance company within twelve (12) months thereafter.
7.2   General Requirements. The following general requirements shall apply to all required insurance above:

  1. policies shall be primary and not contributory to any insurance or program of self-insurance maintained by Company;
  2. Publisher will not raise its deductible or retention in excess of One Hundred Thousand Dollars ($100,000) per occurrence or accident without first providing Company with sixty (60) days’ prior written notice;
  3. all deductibles and premiums shall be Publisher’s responsibility;
  4. upon Company’s request, Publisher shall provide to Company, broker’s notes of insurance evidencing full compliance with these insurance requirements. Failure to request or to furnish a broker’s note as specified herein shall not constitute a waiver by Company of the insurance requirements in this Agreement;
  5. the insurance limits shall not in any way limit the liability of Publisher during performance under this Agreement; and
  6. Publisher will provide Company with at least thirty (30) days prior written notice if any coverage is to be canceled or materially altered so as not to comply with the foregoing requirements.
7.3   Publisher covenants that during the term hereof and so long as it is bound by the non-interference provisions hereof it shall not sell a Lead to any competitor of Company after it has been sold to and accepted by Company.

8.  COVENANTS, REPRESENTATIONS AND WARRANTIES

8.1   The Publisher represents and warrants to DMM that:

  1. none of the Publisher’s websites contain false or deceptive advertising or any machine readable code including without limitation any virus, Trojan horse, work or other self-executing program;
  2. the Publisher websites are reputable and comply with all laws applicable in the jurisdiction where the Publisher is situated and also where the Publisher directly or indirectly conducts its business or markets an Offer;
  3. it owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on or through its website or websites and in its electronic mail;
  4. it has the authority to bind its Sub-Publishers to the terms hereof and shall be liable for any breach of this Agreement by its Sub-Publishers; and
  5. IF THE PUBLISHER IS AN INDIVIDUAL, THAT THE PUBLISHER WAS AT LEAST 18 YEARS OF AGE ON THE DAY THE PUBLISHER AGREED TO THIS AGREEMENT.
8.2   The Publisher covenants and agrees that:

  1. it will, at all times, comply with all laws applicable in the jurisdiction where the Publisher is situated and also where the Publisher directly or indirectly conducts its business or markets an Offer;
  2. it will, at all times, comply with the terms of this Agreement, as updated, amended and replaced by DMM, from time to time, in its sole discretion;
  3. it will not, without the express written consent of DMM, use or permit its Sub-Publishers or any person for who it is in law responsible to use any third-party trade-names or trade-marks;
  4. it will not publish on any website or send in any electronic mail a universal resource locator or other link to any content or otherwise engage in or condone any practice, which, in the opinion of DMM is deceitful, defamatory, libelous, abusive, violent, prejudicial, obscene, pornographic, likely to bring the reputation or standing of DMM or the Client into disrepute, or which otherwise would be illegal;
  5. it will at all times comply with the terms and conditions of any agreement or policy established by an Offer in which the Publisher elects to participate;
  6. it will at all times comply with the provisions of the CAN-SPAM Act of 2003, the California Business and Professions Code, and applicable advertising laws as amended or replaced, from time to time;
  7. it will be responsible for the development, operation and maintenance of its website or websites and electronic mail, including without limitation the technical operation thereof, the creation, publication and accuracy of any content published on any such website or websites or in any electronic mail;
  8. it will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from DMM;
  9. it will not “frame” or “mirror” any part of any pages hosted by the Client unless expressly permitted by DMM and the Client;
  10. it will not alter any website or electronic mail content provided by DMM; and
  11. it will, at all times and from time to time, provide DMM with written confirmation of a valid address, telephone number, electronic mail address and such other identifying or financial information as DMM may reasonably require.
8.3   Each Party represents and warrants to the other that:

  1. it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement;
  2. neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and
  3. such Party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.

9.  NON-COMPETITION

9.1   Publisher recognizes that DMM has proprietary relationships with its Clients. Publisher agrees not to circumvent DMM’s relationship with any Client, or otherwise solicit, induce, recruit or encourage, directly or indirectly, any Client for whom DMM generated actions, sales, leads, impressions or clicks under the Agreement for purposes of providing or, where applicable, obtaining, advertising, marketing or promotional services similar to either Party’s services herein for the six (6) month period (the “Non-Solicitation Period”) following the Publisher’s performance of any Campaign hereunder. Notwithstanding the foregoing, to the extent that Publisher can show via written documentation that any such Client already obtained services from Publisher prior to the date of the Publisher’s Campaign with DMM, then Publisher shall not be prohibited from continuing such relationship, provided that in doing so Publisher does not circumvent DMM’s relationship with the Client or attempts to induce the Client to reduce the amount of business it conducts with DMM. Without limiting any other right or remedy of DMM under this Agreement or applicable law, including but not limited to the availability of injunctive relief, if Publisher should violate this Section 8, then as liquidated damages for the reasonable estimation of the loss of such business and not as a penalty, Publisher shall forfeit all Publisher Commissions earned but not yet paid by DMM; and then as liquidated damages for the reasonable estimation of the loss of such business and not as a penalty, Publisher shall pay to DMM an amount equal to DMM’s profits for the preceding eighteen (18) months generated by all Campaigns for such Client, or such lesser time as such relationship with the Client is in existence.

10.  DISCLOSURE OF INFORMATION

10.1   Each Party or its directors, may, from time to time, disclose to the other Party certain information relating to its business or to its customers, publishers, subsidiaries, Affiliates, agents, or employees; business and marketing plans, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of the Party; or any data as found on the Program Site (all collectively referred to as the “Confidential Information”). The other Party acknowledges that Confidential Information will be provided at the sole discretion of the other Party, and nothing in this Agreement obligates either Party, its directors, agents or employees to disclose or grant to the other Party access to any Confidential Information.
10.2   Unless expressly authorized in writing by the disclosing Party, the receiving Party covenants and agrees:

  1. to use the Confidential Information only for the purposes expressly contemplated in this Agreement; and
  2. that no Confidential Information will be disclosed to any third party, Affiliate, subsidiary, agent, or employee of the receiving Party without the prior written consent of the disclosing Party, which may be unreasonably and arbitrarily withheld.
10.3   The Parties each acknowledge that each Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The receiving Party agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of the disclosing Party.
10.4   Upon termination of this Agreement, or otherwise on demand by the disclosing Party, the receiving Party agrees that it will promptly deliver to the disclosing Party all notes, data, tapes, reference items, sketches, drawings, memoranda, records, diskettes, electronic communications in any form, and any other materials in any way relating to any of the Confidential Information in the possession of the receiving Party or any Affiliate, subsidiary, agent, or employee of the receiving Party.
10.5   Each Party acknowledges and agrees that:

  1. the provisions of this Section and the Parties’ agreement with the same are of the essence and constitute a material inducement to enter into this Agreement;
  2. the provisions of this Section shall be construed independently of any other provision of this Agreement, and the existence of any claim or cause of action either Party may have against the other Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by DMM of the provisions of this Section;
  3. that any breach of this Section would cause irreparable harm to the disclosing Party for which damages might not be an adequate remedy, and the receiving Party therefore agrees that in the event of any such breach, the disclosing Party will be entitled to seek, in addition to any other right accruing to the disclosing Party under this Agreement or otherwise in law or equity, injunctive relief against the receiving Party without the necessity of proving actual damages; and
  4. notwithstanding any other provision of this Agreement, this Section shall survive the termination of this Agreement, however caused.
10.6   The receiving Party agrees to indemnify and save harmless the disclosing Party against any and all loss, costs or expenses, inclusive of court costs and legal fees on a solicitor and own client basis, which the disclosing Party may incur as the direct or indirect result of any unauthorized disclosure of the Confidential Information by the receiving Party or any person for whom the receiving Party is responsible, in law.

11.  INDEMNIFICATION

11.1   Indemnification by Publisher. The Publisher covenants and agrees to defend, indemnify and save harmless DMM, its parent company, affiliated companies, DMM’s Clients, payment processors, service providers and their respective shareholders, directors, officers, and employees (collectively, the “DMM Indemnified Group”) from and against any and all claims, suits, demands, damages, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys’ fees) incurred directly or indirectly as a result of

  1. Publisher’s breach of or non-compliance with this Agreement,
  2. Publisher’s violation of any law,
  3. any consumer, ISP provider, internet service provider or any governmental/regulatory complaint arising out of any email Campaign conducted by Publisher;
  4. Publisher’s acts or omissions in using, displaying or distributing any internet links obtained from the Program Site or elsewhere, including but not limited to Publisher’s use of internet links via email distribution, (each (a)-(d) individually is referred to hereinafter as a “Claim”), whether or not the DMM Indemnified Group or any of them are named as a party defendant in any such proceedings. Should any Claim give rise to a duty of indemnification under this Section 10, DMM shall notify Publisher, and DMM shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher’s obligations to indemnify or hold DMM harmless. Publisher shall not settle any Claim without DMM’s prior written consent. Publisher also shall indemnify for any reasonable attorneys’ fees or other costs incurred by any of the DMM Indemnified Group in investigating or enforcing this Section 10. The obligation of the Publisher to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this Agreement or any agreement between the Parties.
11.2   Indemnification by DMM. DMM covenants and agrees to defend, indemnify and save harmless Publisher, its parent company and their respective directors, officers, and employees (collectively, the “Publisher Indemnified Group”) from and against any and all third party claims or judgments, including all associated reasonable attorneys’ fees, expenses and disbursements actually incurred, arising out of a breach by DMM of any warranty, representation or covenant given to the Publisher in this Agreement. The obligation of DMM to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement. The Publisher may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by DMM. The Publisher may participate in the defense of all claims as to which it does not assume defense and control, and DMM shall not settle any such claim without the Publisher’s prior written consent which shall not be unreasonably withheld.

12.  DISCLAIMER

12.1   TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DMM DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO ANY MATTER, WHETHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION (A) ANY WARRANTY OF PROFITABILITY, SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT DMM’S SECURITY METHODS WILL BE SUFFICIENT, AND (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY). UNDER NO CIRCUMSTANCES IS DMM RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY CLIENT, ADVERTISER OR PUBLISHER, OR SUCH CLEINT, ADVERTISER OR PUBLISHER’S WEB SITE(S), AND/OR THE CONTENT OF A CLIENT OR AN ADVERTISER’S WEB SITE OR THAT A CLIENT OR AN ADVERTISER MAKES AVAILABLE THROUGH THE PROGRAM.

13.  LIMITATION OF LIABILITY

13.1   ANY OBLIGATION OR LIABILITY OF DMM UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (1) THE TOTAL OF PUBLISHER’S COMMISSIONS PAID TO PUBLISHER BY DMM UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM; OR (2) TEN THOUSAND ($10,000.00) US DOLLARS. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. IN NO CIRCUMSTANCE WILL DMM BE LIABLE TO THE PUBLISHER OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH PUBLISHER’S MARKETING EFFORTS) FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS OF THE PUBLISHER OR THE PUBLISHER’S SUCCESSORS OR ASSIGNS.

14.  TERMINATION

14.1   DMM may terminate this Agreement, at any time, on six (6) hours’ Notice (defined below) to the Publisher. The Publisher may terminate this Agreement, at any time, on forty-eight (48) hours’ Notice to DMM.
14.2   Notwithstanding termination of this Agreement for any reason, the Publisher covenants and agrees that it will continue to be bound by the terms and conditions set out in Sections 5, 8, 9, 10, 11, 12, 14.1 of this Agreement.

15.  GENERAL

15.1   The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, excluding its conflict of law rules. The Parties agree to the exclusive jurisdiction of the courts located in Los Angeles County, California with respect to any dispute arising as a direct or indirect consequence of this Agreement.
15.2   DMM may assign this Agreement without the Publisher’s prior consent. The Publisher may not assign this Agreement without the express written consent of DMM.
15.3   From time to time, DMM may amend, supplement or replace this Agreement in part or in whole, on Notice to the Publisher of not less than five (5) business days. If within five business (5) days following Notice of such amendment, supplement or replacement the Publisher has not terminated this Agreement, the Publisher will be deemed to have consented to the same.
15.4   Any notice or other communication (“Notice”) permitted or required by this Agreement will be in writing and given by electronic mail as follows:

  1. to DMM, to the account representative assigned to Publisher; or
  2. to Publisher, at the email address provided to DMM by the Publisher in its Program account. Any such Notice will be deemed to have been received on the date on which it was transmitted by electronic mail.
15.5   No term or condition of this Agreement will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by both Parties.
15.6   In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction, then this Agreement with respect to the remaining terms, covenants or conditions will continue in force.
15.7   This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and assigns of both DMM and the Publisher.
15.8   This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.
15.9   Force Majeure. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
15.10   Publicity. Publisher agrees that DMM may identify it as a DMM Publisher in client lists and may use Publisher’s name and/or logo solely for such purpose in its marketing materials. Any other uses of Publisher’s name and/or logo not otherwise described or contemplated herein shall require Publisher’s prior written consent.

By doing business with DMM the Publisher agrees to be bound by the terms of this Publisher Services Agreement:

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