Publisher Terms and Conditions

The following terms and conditions (hereinafter "Agreement") govern your (hereinafter "Publisher") relationship with Adscend Media LLC ("Company") and the use of the Company's website, services and additional products and websites offered by Company (individually and collectively, "Services"). Company reserves the right to make changes to the Services and this Agreement at any time and without notice. The most recent Agreement will be posted on Company's website (hereinafter "Site") and Publishers will be notified of changes upon login to their accounts. Continued use of the Services after such posting shall constitute Publisher's consent to such modification. If Publisher does not agree to this Agreement in its entirety, or any subsequent revisions or amendments, then Publisher is not authorized to use or access any Services offered by Company.

  1. Approval of Publisher.

    Registration with Company shall not confer any right on Publisher to use or access Company's Services. Publisher is subject to approval by Company. All prospective Publishers must be approved by Company before they can become Publishers. Company reserves the right to withhold or refuse approval for any reason or for no reason. Once approved, Publisher's continued right to use the Services and participate as a publisher of Company is conditioned upon Publisher's ongoing compliance with this Agreement and Company's posted policies on the Site. Failure of the Publisher to observe the terms and conditions of this Agreement, or the posted policies will be a material breach and shall disqualify Publisher from any further participation in Company's Services and may result in termination or suspension, and/or the deactivation of all links in any Programs downloaded by Publisher, forfeiture of payment and legal action. Publisher shall promptly notify Company in the event of a material change in its business or marketing strategy. Company's approval of Publisher may be withdrawn by Company at its sole discretion at any time for any reason without prior notification.

  2. Company Services.

    Company provides services to advertisers ("Advertisers"), third parties which post a link containing Advertiser's marketing programs ("Program(s)") on Company's proprietary platform ("Platform"). The Program(s) 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. In addition Company may post a link to a Program owned and operated by Company. The same terms and conditions apply to all Company owned Programs. Company shall have the right to suspend or terminate its provision of Services at any time, for any reason on ten (10) days notice to Publisher.

  3. Publisher Services.

    If Publisher accepts a Program, Publisher agrees to place that Program's advertising links (including the landing page) and creative (including the subject and from lines, the Advertiser CAN-SPAM disclosures and any other disclosures provided therein) (collectively, the "Ad") on Publisher's Media (as defined below) exactly as the Ad appears on the Platform and Publisher will not alter such Ad in any way, including resizing of Ads, without written approval from Company. In addition, Publisher shall comply with the following terms and conditions:

    1. General Minimum Media Requirements. All Publisher's websites, affiliated websites and e-mail distribution lists (collectively "Publisher's Media") must continually meet the following minimum criteria:

      1. If Publisher sends or transmits Ads via email, Publisher must have the consent of each email recipient to send such email and each Publisher shall maintain records evidencing such consent including all of the information that was collected at the time the end user registered at Publisher's site or provided an opt-in to receive commercial email.
      2. Publisher may offer incentives to users as a means to enhance the performance of any Program provided that (a) the offering and awarding of incentives is permitted by the Advertiser for which the Ad is placed, and (b) Publisher implements commercially reasonable fraud prevention measures regarding the offering and awarding of incentives. Incentives include but are not limited to awarding user cash, points and prizes;
      3. Publisher's website[s] must be fully functional (not "under construction") at all levels and must point to a top level domain;
      4. Publisher's Media and the content and creative materials created by Publisher and used by Publisher on and in connection with Publisher's Media (collectively, "Publisher Content") shall not be deceptive and shall be compliant with all applicable foreign, state and federal laws and regulations including, without limitation, those pertaining to internet marketing, consumer privacy, the CAN-SPAM Act of 2003, as amended, and the Federal Trade Commission Act;
      5. Publisher Content shall not constitute a false testimonial, undisclosed paid endorsement or other types of "flogging";
      6. Publisher shall not offer or provide sweepstakes, raffles, contests or other games of chance in connection with or related to any Ad;
      7. Publisher shall only publish or place Ads through mediums which Company has specifically approved for Publisher;
      8. Publisher shall not modify or alter any Ad, including, without limitation, the Ad's content, creative, and terms and conditions. Ads may only be published in accordance with the terms and conditions set by Company and the Advertiser;
      9. Publisher agrees to and shall be bound by any and all terms and conditions contained in a "Campaign Mandatory Requirements Posting" which may be placed on the Site. Publisher must review these Requirements, which are additional terms and conditions for specific Ad(s) and/or Advertiser(s), prior to accepting an Ad to which such Campaign Mandatory Requirements Postings are attached. To the extent the terms and conditions contained in the Campaign Mandatory Requirements Postings are different than this Agreement, the Campaign Mandatory Requirements Postings will control over this Agreement with all other terms of this Agreement remaining in full force and effect;
      10. Publisher's Media and any content used by Publisher on or in connection with Publisher's Media shall not be targeted to or intended to be used by persons under the age of 18. Publisher shall not knowingly collect any information from children under the age of 13;
      11. Publisher shall not send or direct any Ad or other communication relating to an Ad to a mobile telephone or other mobile electronic device via SMS, MMS or any other type of text messaging service or protocol unless and until Publisher (a) receives prior written authorization from Company and (b) enters into a separate written agreement with Company regarding Publisher's mobile marketing activities;
      12. Spawning process pop-ups are prohibited; and
      13. Publisher's Media and Publisher's Content shall not include the following: (1) personal blogs, false testimonials or undisclosed endorsements; (2) Pornographic material, including any material appealing to the prurient interests; (3) Racial, ethnic, political, hate-mongering or otherwise objectionable content; (4) Investment, money-making opportunities or advice not permitted under law; (5) Gratuitous violence or profanity; (6) Material that defames, misrepresents, abuses, or threatens physical harm to others; (7) Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.; (8) Software Pirating; (9) Hacking or Phreaking; (10) Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic; (11) 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; (12) Any illegal activity whatsoever.
    2. Special Rules Governing Email Campaigns. The following provisions shall be adhered to by all Publishers who are marketing Ads via email:

      1. Upon Company's request, Publisher will immediately provide Company with appropriate records verifying recipient's consent to receive email transmissions from Publisher. Such records include, but may not necessarily be limited to, the recipients, IP address at the time of registration or opt-in; the name of the website to which the recipient registered or opted in; the privacy policy which was posted at the time the recipient registered or opted in; the date the recipient registered or opted in and any other information which was collected at the time of registration or opt-in. If Publisher does not own or operate the originating source for the registration or opt-in, Publisher must obtain and produce at Company's request a written agreement from such source and data owner allowing Publisher's use of recipients' email addresses.
      2. No Random or Invalid Generation of Email Addresses. Publisher is responsible for knowing the source of its email list(s). Email addresses may not be obtained by the use of a program for random generation of email addresses, and/or "scraping" websites or online services.
      3. No Misleading Headers or Other Masking of Email Origin. An email may not include falsification of header information, false registrations for domain accounts, email accounts or IP addresses used in connection with email ads, and retransmissions of an email ad for the purpose of concealing its origin. No proxy server traffic is allowed. Publisher and/or their email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization.
      4. Only approved and current content, including creative, text copy, subject lines and from lines, shall be used in any emails sent by Publisher on behalf of Company or its Advertisers. Publisher must use the Ads found on the Platform in any emails sent by Publisher. Publisher must have documented approval from Company to use any alternate creative, text copy, subject lines or from lines that are not located on the Platform. Any alterations of Ads submitted for approval by Company shall be thereafter owned by Company. Subject lines may not be false or misleading such that it would likely mislead a reasonable recipient as to the contents or subject matter of the email message and must accurately represent the product or service depicted within Ads.
      5. Ads Must Contain Clear Identification as an advertisement. Messages containing advertisements or solicitations must be clearly identifiable as such through a clear and conspicuous means or manner.
      6. Consumer Opt-Out Functions. Senders of commercial emails must give recipients an effective means of requesting not to receive future ads via email. At a minimum, Publisher must provide the recipient the ability to opt-out of receiving further emails from the Advertiser by placing in every email a valid physical street address provided by the Advertiser and a link to an internet based unsubscribe mechanism. The internet based unsubscribe link must remain in operation for thirty (30) days from the date of the original email transmission.
      7. Unsubscribe Request Processing. All unsubscribe requests must be honored within ten (10) business days from their receipt. Publisher must scrub against the Advertiser and Company's unsubscribe list at least every seven (7) days. It is best practice to scrub every three (3) days and is recommended by Company.
      8. Publisher shall download the most recent suppression file(s) for the campaign they intend to mail and will suppress all email addresses within its database that are in the file prior to launching any Ad by email campaign. For any campaigns that include a domain suppression list, Publisher agrees that it will download the most recent domain suppression list prior to mailing the campaign and will suppress all domains within its database found on such list. Publisher agrees that it will download and remove the domains located on the FCC's wireless domain names list located at from all mailings, prior to mailing.
      9. If a Publisher uses a third party to transmit emails, then that third party and Publisher will be treated as one and the same for the purposes of this Agreement.
    3. Special Rules Governing Display and Social Media Campaigns.

      1. Ad Placement. Publisher may place or cause the placement of Ads only on websites that meet the Ad placement restrictions provided by Advertiser and Company. Publisher shall not place any Ad on or in conjunction with any online newspaper classified sites, Craigslist or other similar sites. Publisher shall remove any Ad that Company requests be removed within two (2) business days of such request and in no event later than any other deadline or time frame imposed by Company.
      2. Allowed Content. In no event will Publisher place or cause the placement of any content that is not approved by Company, including any ad other than an Ad provided by Company to Publisher or any content containing any trademark, logo, trade name or other property of the Advertiser unless approved in advance by Company and/or Advertiser.
      3. Intended Purpose. Publisher will not use any ad or other creative in connection herewith other than the Ads or other creative provided by Company to Publisher for the express purposes of this Agreement and any insertion order.
      4. Adjacency. No Ad shall be placed adjacent to content or other ads that promote pornography or nudity, tobacco, alcohol, violence, gambling, the use of firearms, libel, racism, hate or other offensive subject matter, or that contains obscene language, infringes on any intellectual property rights or trademarks, or any illegal activity whatsoever.
      5. Compliance with Website Guidelines. Publisher shall comply with all policies or other terms or conditions that apply to the use of a website where an Ad is placed, including without limitation, any terms of service, privacy policies, promotions guidelines, advertising guidelines, copyright policy, branding and promotion policy, statements of guidelines or principles and developer principles and policies, provided that the same are in compliance with all applicable laws, rule and regulations.
      6. Any violations of the foregoing Special Rules Governing Display and Social Media Campaigns may result in a warning, suspension, or termination by Company. In addition, a social media company may also choose to suspend a Publisher, terminate the Publisher's use of its service or pursue legal action against the Publisher if the Publisher violates the social media company's policies or other terms or conditions.
  4. Monitoring.

    Company may, but is not required to, monitor publisher activities using Company Services, on its own or with the assistance of third parties. Without limiting the generality of the foregoing, Company or a third party retained by Company may monitor for assurance of compliance with this agreement, applicable legal requirements pertaining to Publisher's media; applicable Advertiser campaign requirements; and honoring of unsubscribe requests. If the monitoring is done by a third party, Publisher authorizes such third party to share all such information with Company. Each unsubscribe list furnished to 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.

  5. License.
    1. Limited License Grant. Company grants Publisher a revocable, nontransferable, non-sub-licensable, non-exclusive limited license to use the Site (including any Ads posted thereon), the Platform 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 this Agreement and the applicable Program Terms.
    2. Sub-Publishers. If a Publisher maintains its own network of publishers or otherwise uses publishers (collectively, "Sub-Publishers") to transmit, place, distribute or display Ads, Publisher shall not transmit or distribute Ads or Programs to Sub-Publishers unless Publisher provides Company with advance written notice of Publisher's intent to use Sub-Publishers to transmit, place, distribute or display Ads. Publisher's Sub-Publishers shall not be on any known blacklists such as Spamhaus or Spam-Cop. Publisher shall (i) require that each of its Sub-Publishers' websites, emails, Ad placement, content and conduct relating to the Ads and Programs and the transmission, placement, distribution and display of Ads comply in all material respects with the provisions of Paragraph 3 and 4(d) of this Agreement applicable to Publisher's websites, emails, Ad placement, content, actions and conduct and (ii) monitor its Sub-Publishers to ensure that the Sub-Publishers are in compliance with Paragraph 3 and 4(d) of this Agreement. As more fully set forth in Paragraph 15 below, Publisher specifically acknowledges and agrees that it shall indemnify and hold harmless Company and Advertisers for any Indemnified Claims (as defined below) arising from or related to the actions or conduct of a Sub-Publisher(s). Sub-Publishers shall have no right, title or interest in or to the Services other than the limited right to display and serve Company Programs and Ads from the Services as sublicensed by Publisher. If a Publisher or Sub-Publisher fails to comply with any of the provisions of this Paragraph, Company, in addition to any other remedies available to it, shall have the right to immediately terminate Publisher.
    3. Site Access. Publisher may only access the Site via web browser, e-mail or in a manner approved by Company. Publisher shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Services, the Site, the Platform, 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 are 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 Services Data, and any other material owned by Company or the Advertisers
    4. Link Usage. Publisher shall not take any actions to impede the action of, interfere with or any Advertiser or Company links ("Links") or tracking devices ("Tracking Devices") unless specifically instructed to do so by Company in writing. Publisher agrees, if requested by Company in writing, to modify or alter Links and/or Tracking Devices in the manner requested by Company.
    5. Ownership. Company shall own all right, title, and interest in and to Links, Tracking Devices and user data collected and derived through the activities of Publisher pursuant to this Agreement as well as all Content provided or submitted by Publisher for approval by Company. Company may choose to imbed certain data mining tools within Links from time to time ("Data Miners"). Any data derived by any such Data Miners 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 prior written approval of Company. Should Company choose to provide advertising creative content, web design services or other web content of any type (collectively, "Company Content") to Publisher, Publisher shall use such Company Content: (i) in exactly the form that it is delivered to the Publisher by Company without modification unless approved in advance by Company in writing; (ii) only in the manner and during the time period expressly permitted by Company in writing. At any time, Company may request that Publisher discontinue its use of Company Content and Publisher shall discontinue such use within two (2) business days of being requested by Company to do so.
  6. 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: (i) 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; (ii) any disclosure is required by applicable law or court order; 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 (iii) 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, the identities of 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 Publisher's Confidential Information to an Advertiser, Company's attorneys, agency, legal or regulatory authority, or any other person or entity relating to investigations, assertions, claims or actions that Publisher or its subpublisher has violated this Agreement, any other entity's terms or conditions, or any applicable law or regulation.

  7. Non-Solicitation.

    While an approved Publisher and for one hundred eighty (180) days thereafter, Publisher shall not participate in any performance based advertising relationship with any Advertiser within Company's network for which Publisher undertook services on behalf of Company, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of Company. 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 conduct by Publisher without posting bond or required demonstration of monetary damages. Such injunctive relief is in addition to and not exclusive of all other rights and remedies available to Company. The ability to seek and obtain injunctive relief is a bargained for provision of this Agreement. In addition, both parties agree and acknowledge that if Publisher violates its obligations under this Paragraph 6, in addition to injunctive relieve, Company will be entitled to liquidated 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.

  8. Fraud.
    1. Monitor and Inactivation. Company may, but is not required to, monitor Publisher's traffic and/or conduct for fraud. If fraud is suspected or detected, Publisher's account will be made inactive pending further investigation, to the extent that further investigation is necessary. Fraudulent 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; 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; use of any incentives to procure clicks or leads; leads obtained other than through intended consumer action without prior written approval of Company. Other fraudulent conduct includes, but is not limited to pre-population of forms or mechanisms not approved by Company; use of sites in co-registration campaigns, sequential promotion or registration sites, unless approved by Company; use of phone books or similar such compilations of personal data, to complete lead generation forms; use of fake redirects, automated software, proxy servers and/or other mechanisms, actions and conduct deemed by Company to generate falsified, sham or illegitimate Events. If Company, in its sole and reasonable discretion, determines that Publisher has engaged in fraudulent traffic generation or other fraudulent conduct, Publisher shall forfeit its entire commission for all Programs and its account with Company shall 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 which Publisher shall make within five (5) business days of such demand.
    2. Adware and Spyware prohibited. Publisher shall at no time, engage in, disseminate, promote or otherwise distribute, any Program or Ad 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 Sub-Publisher or other agent. In the event that Company discovers that Publisher is engaging in, disseminating, promoting or otherwise distributing, any Company Program or Ad through contextual marketing, then Company may, in its sole discretion, terminate this Agreement and immediately halt any and all Company related contextual marketing campaigns, making payment only on legitimate earnings of Publisher as accrued through the date and time of termination and withholding any and all earning obtained through violation of this Agreement.
  9. Payment.
    1. Subject to the terms of this Paragraph 8, Publisher will be paid per the terms of each Program or insertion order. Provided that Publisher meets its minimum monthly commission, shall pay any amounts due approximately thirty (30) 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 due to Publisher for a specific Program until such time as the Advertiser has paid Company for that Program. Company does not guarantee payment to Publisher for a Program if the Advertiser fails to pay for that Program for any reason or no reason at all. Publisher acknowledges and agrees that (i) it accepts all risks if an Advertiser fails to pay for a Program, and (ii) Company is not a guarantor of any Advertiser payment obligation.
    2. If Publisher's minimum monthly commission is not achieved, the commission will be rolled over into the next month. The monthly minimum amount depends on Publisher's selected payment method -- $50 for PayPal, $50 for Payoneer, $100 for ACH or checks within the U.S., $125 for checks mailed outside the U.S., and $500 for wire transfer (wire transfers under $1,000 are subject to a $15 processing fee).
    3. Company reserves the right to reduce any payments owed to Publisher at any time, as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. If no further payments are due to Publisher, Publisher shall pay back these amounts within fifteen (15) days of receipt of invoice for the offset amount.
    4. Company reserves the right to withhold or reduce any payment to Publisher at any time in the event that Publisher or its sub-publisher breaches any material term of this Agreement or Company is placed on notice that Publisher or its sub-publisher, in connection with using the Services, has violated any other entity's terms or conditions or any applicable law or regulation.
    5. 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 must be submitted by Publisher in writing within five (5) business days of receipt of final data or payout, or the information will be deemed accurate and accepted as such by Publisher. 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.
  10. Referral Program.
    1. Publisher may refer others to join Company as a new publisher, using a special link found in the Tools section of Publisher's account on the Site. In order for a referred publisher to constitute a valid referral, and for Publisher to earn commissions as outlined in Paragraph 9(b) below, the following must be true: (i) the referred publisher must be new to Company. applying for an account with Company for the first time; (ii) the referred publisher must not be a business partner, relative or co-habitant of Publisher and/or its principals; and (iii) the referred publisher's account must not be directly or indirectly under Publisher's control. Referred publishers must register with Company using Company's unique referral link to on the Application page on the Site. Referrals cannot be credited to you retroactively or manually. The validity of referrals is at the sole discretion of Company, and a "referred" account may be removed Publisher's referral list at any time if Company reasonably believes that one or more of the preceding guidelines has been breached.
    2. Publisher will receive a 5% commission on the payable/paid earnings of Publisher's referrals. Commissions are calculated on or about the 30th of the month, for the Events recorded in the prior month. Subject to the provisions of Paragraph 8, above, referral commissions will be added to the next payment that is sent to Publisher for its own earnings. Referral commissions do not count toward Publisher's minimum monthly commission. Referrals must be in good standing at the time that your referral commissions are paid, in order for you to earn a commission on that referral.
    3. PixelPointTV. Any Publisher that participates in the PixelPointTV rewarded video program acknowledges that it is explicitly forbidden to refer Publisher's users to sign up to PixelPointTV using a referral link. In the event Publisher generates referral commissions to PixelPointTV, publisher acknowledges that all referral commissions will be forfeited at the sole discretion of Company.
  11. Term and Termination.

    Either party may terminate this Agreement on three (3) business days 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 material breach of any terms of this Agreement, such party shall have right to terminate the Agreement immediately upon written notice to the other party.

    Termination notice will be provided via e-mail and will be effective immediately. Upon termination, Publisher and any Sub-Publisher must immediately cease all advertising activities. All monies then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained in Paragraphs 4, 5, 6, 7, 11, 13, 14 and 17 of this Agreement 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.

  12. Representations and Warranties/Covenants.
    1. Mutual Representations. Each party represents and warrants that: (i) it has the right to enter into and fully perform the services contemplated herein, consistent with this Agreement; (ii) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with this Agreement; and (iii) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations nor warranties express or implied, as to the level of consumer response that will result from the Programs.
    2. Publisher Representations. Publisher represents and warrants that:
      1. It shall comply, and cause its Sub-Publishers to comply with all applicable international, federal, state and local laws, rules and regulations in the performance of its services under this Agreement;
      2. Publisher's websites, databases, emails and all linked content are, and shall remain at all times during the terms of this Agreement, in compliance with all applicable foreign, federal and state laws, including but not limited to the Federal Trade Commission Act, the Federal Communications Act, COPPA, the CAN-SPAM Act of 2003, as amended, applicable Federal Trade Commission implementing regulations and any and all foreign, federal and state deceptive trade practices legislation;
      3. Publisher's websites, databases, emails and all linked content do not (1) promote racism, hatemongering or other objectionable content; (2) contain any investment or money making opportunities or advice not permitted by applicable laws, rules and regulations; (3) contain any gratuitous violence or profanity or other explicit vulgar or obscene language; (4) contain or post to any sexually explicit images or other offensive content or adult services; (5) promote illegal substances or, alcohol or tobacco; (6) promote software piracy or otherwise violate any intellectual property rights of third parties; and
      4. Publisher does not 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 Advertiser's link or use Advertiser's ads to generate revenue for users to win points, get rewards, or other incentives are prohibited unless expressly approved in writing from Company; Publisher shall not (1) violate any third party terms and conditions, which includes, but is not limited to unauthorized use of a third party web site for commercial gain or post bulletins to non-owned account; (2) 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; and (3) use any deceptive form of advertising which includes, but is not limited to, phishing, sending an email to an individual falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identify theft of other activity.

        Publisher acknowledges that breaches 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. 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. Publisher acknowledges and agrees that Company shall not be responsible for the Advertisers violation of any applicable laws or regulations, including, without limitation, Federal Trade Commission Act, the Federal Communications Act, COPPA, the CAN-SPAM Act of 2003, as amended, applicable Federal Trade Commission implementing regulations and any and all foreign, federal and state deceptive trade practices legislation.

  13. Privacy Policy.

    Publisher shall maintain and post in a conspicuous manner on all its websites involved in marketing the Programs, a privacy policy that clearly and adequately describes what information is collected about the end user, how such information is collected, and how such information is used and/or leased or sold to a third party for commercial benefit to the Publisher.

  14. 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. All information provided to Publisher hereunder shall be kept strictly confidential.

  15. Limitation of Liability; Disclaimer of Warranty.

    Except pursuant to Paragraph 15 or 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.


    Company makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any Services, 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 Program. Company makes no representations whatsoever about any other website which Publisher may access through the Services. 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.

  16. Indemnity.
    1. Indemnity. Publisher will defend, indemnify, and hold harmless Company, its officers, directors, agents, employees, contractors, suppliers, successors and assigns and the Advertisers, their respective officers, directors, agents, employees, contractors and suppliers and their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney's fees and expenses) arising from or related to any actual or alleged breach of any of provision this Agreement or any Program terms and conditions by Publisher and/or a Sub-Publisher(s) (collectively, the "Indemnified Claims"). Without limiting Publisher's indemnification obligations herein, Company reserves the right to assume the exclusive defense and control of the Indemnified Claims. Publisher hereby acknowledges that the Advertisers are intended third party beneficiaries of the foregoing indemnification obligation. No settlement may be consummated of any Indemnified Claims without Company's express written authorization, which shall not be unreasonably withheld.
    2. Notification of Legal Action. Publisher shall immediately notify Company of any current, impending, or potential legal action against it by a third party for matters relating to its participation in Company Services or services similarly provided for by and through other parties when the same arise.
  17. Force Majeure.

    Neither party shall be deemed in breach of this Agreement 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.

  18. General.
    1. Entire Agreement. These Terms and Conditions, together with the terms for each of the Programs and the Mandatory Requirements Postings, constitute the entire agreement between the parties and supersede all prior agreements or understandings between the parties.
    2. Dispute Resolution. This Agreement shall be governed by the laws of the United States and the State of Texas without respect to choice of law rules. The Parties consent to have all disputes arising under or related to his agreement resolved by the federal or state courts, as the case may be, located in New York County, New York. The prevailing party in any litigation shall be entitled to an award of it reasonable attorney fees and costs incurred in connection with such litigation.
    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.
    4. Assignment. This Agreement and the rights hereunder are not transferable or assignable without prior written consent of the non-assigning Party; provided, however, that this Agreement may be assigned by either Party (a) to a person or entity who acquires substantially all of that Party's assets, stock or business by sale, merger or otherwise and (b) to an affiliate of either Party.
    5. Severability. In the event that any provision of the terms or conditions set for in the Agreement is found by an arbitrator or court having jurisdiction there over 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 the terms and conditions shall remain valid and enforceable.
    6. Relationship. The parties agree that Publisher 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 Publisher, Sub-Publisher nor their employees or agents: (i) are an employee, agent or legal representative of Company, or (ii) shall have any authority to represent Company or to enter into any contracts or assume any liabilities on behalf of Company. Conversely, Company is not (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. Each party retains all the rights and privileges of sole employer of its own employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such employees. Neither party's employees shall have any right to receive any employee benefits from the other party.
    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.
    8. Notice. Any notice, communication or statement required by or relating to this Agreement shall be in writing and deemed effective upon receipt when (i) delivered to Company by verified email to ; or, as the case may be, (ii) delivered to Publisher at either the postal or email addresses provided by Publisher when registering with Company.

      Publisher shall promptly notify Company of any and all changes to Publisher's postal and email addresses.

    9. Survival. In addition to certain provision specifically set forth in the Agreement to survive cancellation, expiration, or earlier termination of this Agreement, the following paragraphs shall likewise survive expiration or earlier termination of the Agreement: 4, 5, 6, 7, 11, 13, 14 and 17.

    10. Complete Agreement. This Agreement combined with any applicable insertion order constitutes the entire agreement of the parties and supersedes any other agreement or understanding written or oral that may have been made or entered into with regard to the subject matter thereof.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date Publisher agreed to be bound by the terms hereof.