The following are the terms and conditions governing your (hereinafter “Publisher”) relationship with The Winter Companies (hereinafter “Company”) and the use of the Company website (hereinafter “Site”). Publisher agrees to use the Site and any additional services offered by Company only in accordance with these Terms and Conditions. 

Company reserves the right to make changes to the Site and these Terms and Conditions at any time. Publisher’s continued use of the Site after any such modification and notification thereof (which may be provided by e-mail to the email address provided in the course of Publisher’s registration with Company) shall constitute Publisher’s consent to such modification.

1. Approval of Publisher

Registration with Company shall not confer any right on Publisher to market or promote any Programs (as defined under section 2) made available by Company on the Site on behalf of its clients (the “Advertisers”). Participation by Publisher in the Company Site and Services is subject to review and approval by Company. All prospective publishers must be approved by Company before they can become Publishers. Approval requires meeting the criteria listed under section 1.1 below, however approval is not automatically granted upon fulfillment of said criteria. Company reserves the right to withhold or refuse approval for any reason or for no reason. Once Publisher has been approved, Publisher’s continued right to participate is conditioned upon Publisher’s ongoing compliance with the terms and conditions of this Agreement. Failure of the Publisher to observe the terms and conditions of this Agreement, the privacy policy or acceptable use policy will disqualify Publisher from participating in the Program. Publisher shall promptly notify Company in the event of a material change in its business practices or strategy. Approval may be withdrawn by Company, at any time for any reason.

1.1. Minimum Eligibility Requirements

All Publisher’s creative materials, banner advertisements, websites, affiliated websites, email distribution lists, and other advertising material (collectively the “Media”) must continually meet the following criteria, at a minimum:

All Publishers that wish to send advertisements via email must have the consent of the consumer to send such email and each Publisher shall maintain records evidencing such consent including, without limitation: (a) Member opt-in date; (b) Registration source; (c) First name; (d) Last name; (e) Mailing Address; (f) Email address; (g) Privacy Policy of Source Site; (h) Any other information collected; and will supply such records to Company within one (1) business days of request therefore;

  • Publishers may not offer incentives to users as means to enhance the performance of any Program (as defined below); incentives include but are not limited to awarding them cash, points, rewards, prizes, contest entries, etc.;
  • Publisher websites must be fully functional at all levels;
  • Publisher’s policies must be compliant with state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003, Regulation (EU) 2016/679 GDPR 2018, the Federal Trade Commission Act, and California Business & Professions Code;
  • Spawning process pop-ups are prohibited; and
  • Such other criteria as Company may from time to time determine, in its sole discretion.

1.2. Publisher Website Content.

The content of Publisher’s Media shall be subject to Company’s subjective approval and must comply with all applicable federal and state laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following: (a) Pornographic material, including any material appealing to the prurient interests; (b) Racial, ethnic, political, hate-mongering or otherwise objectionable content at the sole discretion of Company; (c) Investment, money-making opportunities or advice not permitted under law; (d) Gratuitous violence or profanity; (e) Material that defames, misrepresents, abuses, or threatens physical harm to others; (f) Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.; (g) Software Pirating; (h) Hacking or Phreaking; (i) Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic;(j)infringement or violations of the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party; (k)Any illegal activity whatsoever;

2. Use of the Site

2.1 The Site allows Company to post offers of advertising programs sponsored by Company or its affiliates on the system (“Program(s)”). The Programs will specify the amount and terms under which Publisher will receive payment when the applicable Program’s requirements are fulfilled. Compensation is derived from a specified event (“Event”) identified in a Program, such as clicks, click-through, sales, registrations, impressions and leads. If Publisher accepts a Program, Publisher agrees to place that Program’s advertising creative (including the “subject” and “from” lines, the Advertiser CAN-SPAM Act of 2003 and Regulation (EU) 2016/679 GDPR disclosures and any other disclosures provided therein) (“Ad”) on Publisher’s Media. Publisher shall display the Ad exactly as it appears on the Site and will not alter it in any way. Failure to adhere to this requirement may, in addition to all other remedies available to Company, result in termination of Publisher. Company may change a Program at any time, upon reasonable advance written notice to Publisher. Company is responsible for displaying and administering all active Programs and tracking the payments owed.

2.2 Special Rules Governing Email Campaigns

2.2(a). In the event that Company or Publisher receives a complaint from any recipient of a Program transmitted by Publisher, upon Company request Publisher will immediately provide Company with appropriate records verifying that recipient’s consent to receive email transmissions from Publisher. (b) No misleading headers or other masking of email origin. An email may not include falsification of header information, false registrations for email accounts or IP addresses used in connection with email ads, and retransmissions of an email ad for the purpose of concealing its origin. Publisher and/or their email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization. (c) Subject lines may not be false or misleading such that they would likely mislead a reasonable recipient as to the contents or subject matter of the message. Publisher may only use approved Ads, including subject lines available provided by Company or subject lines for with Publisher has documented approval from Company. (d) Ads consisting of email messages must contain clear identification. Messages containing advertisements or solicitations must identify themselves as such, and do so by “clear and conspicuous” means, for example, by stating tin the message body “This advertisement is brought to you by (Publisher Company)”. Further, the sender must identify itself as the initiator and sender of the email including company name, email, and physical address. (e) Effective Method of Opting Out of Future Mailings. Senders of commercial e-mails must give recipients an effective means of requesting not to receive future email ads from that sender. At a minimum, the publisher must give the recipient the ability to send a reply message to unsubscribe, opt out via postal letter and provide a functioning unsubscribe link that must remain in operation for thirty (30) days from the date of the original e-mail transmission. (f) All unsubscribe requests must be implemented within ten (10) business days from their receipt. You may not sell or transfer an email address or personal information once someone has opted out of receiving future communications, whether from only the advertiser or globally. (g) No Random or Invalid Generation of Email Addresses. Publisher is responsible for knowing the source of its email list. Email addresses may not be obtained by the use of a program for random generation of e-mail addresses, and/or “scraping” websites or online services. Publisher must have full opt-in data for all recipients in its database.

3. Monitoring

Company may monitor, on its own or with the assistance of third parties, the Publishers for compliance with these Terms and Conditions, without limiting the generality of the foregoing:

3.1. All Publishers monitored by Company (or a third party retained by Company for such purposes) for compliance with applicable legal requirements, with respect to honoring unsubscribe requests. If the monitoring is done by a third party, such third party will share all such information with Company.

3.2 Each unsubscribe list furnished to a Publisher shall be separately and technologically identified so that Company will be able to ensure that each Publisher is not disseminating or otherwise using the unsubscribe list other than in a manner required by applicable law. Publisher must not send further emails to names already on or newly added to the unsubscribe list. Publisher must scrub against unsubscribe list at least every three (3) days.

4. Services and License

Company grants Publisher a revocable, non-transferable, non-sublicensable, non-exclusive, limited license to use the Site (including any Ads posted thereon) and any data, reports, information or analyses arising out of such use (the “Site Data”) solely for the purpose of marketing or promoting the Programs hereunder and subject to these Terms and Conditions and the applicable Program Terms as set forth in any Insertion Order. If a Publisher also maintains its own network of publishers, it is authorized to distribute company’s offers to sub-publishers provided that Publisher shall ensure and require that all sub-publishers comply with the material terms of this Agreement and further provided that such sub-publisher has represented to Publisher that: (i) the content of its site(s) are not libelous, defamatory, infringing, pornographic, or offensive to the general public, (ii) all right, title and interest in the Offer is exclusively owned by Company and that sub-publisher has no right other than the limited right to display the Offer and Creative as sublicensed by Publisher, and (iii) such sub-publisher will not modify or alter the Offer or Creative in any manner. If a Publisher or sub-publisher fails to adhere to the foregoing requirement, in addition to any other remedies available to Company, Publisher shall forfeit its rights to any amounts owed by Company to Publisher. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, or any content provided on the Site (including the Ads). Publisher may only access the Site via web browser, e-mail or in a manner approved by Company. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary to and owned by Company. If instructed to do so by Company and/or if Publisher shall be terminated by Company, Publisher will immediately destroy and discontinue the use of any Company data, including Site Data, and any other material owned by Company or the Advertisers.

4.1. Links

Publisher agrees to use the Links in the exact form provided to Publisher. Publisher agrees not to modify, alter, delete, or adapt the Links in any manner without Company’s written approval. Links must be served from Company server. Publisher shall not take any actions to impede the action of or to disable any such links. Publisher agrees, if requested by Company, to modify or alter Links or Tracking devices in the manner requested by Company. Publisher further agrees that it shall in no event modify or interfere with Tracking devices unless specifically instructed to do so by Company in accordance with the previous sentence.

4.2. Ownership

Company owns all rights, title, and interest to Links and user data collected and derived through the activities countenanced pursuant to this Agreement. Company may choose to imbed certain data mining tools within Links from time to time (“Data Miners”). Any data derived by any such Data Miner shall be the sole property of Company. Company may, from time to time, opt to share data derived from Data Miners with Publisher to help Publisher optimize the quality of leads generated from Publisher’s activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement. If Company does share data derived from Data Miners with Publisher, Publisher agrees that this data will be used solely by Publisher for the purposes for which it is provided to Publisher and will not be shared by Publisher with any other third party or entity without the written approval of Company. Should Company choose to provide advertising creative content, web design services or other web content of any type (“Web Content”) to Publisher, Publisher shall use such Web Content: (i) in exactly the form that it is delivered to the Publisher by Company without modification unless approved by us in writing; (ii) only in the manner expressly permitted by Company in writing and only until Company shall request that Publisher discontinue its use of such advertising creative, at which time Publisher shall discontinue such use within two (2) business days of being requested by Company to do so.

4.3. Confidential Information

Each party agrees to use the other party’s Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party’s Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Publisher agrees that Company may divulge its personal and/or otherwise Confidential Information to an Advertiser, agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Publisher has violated this Agreement or any applicable law or regulation.

5. Non-solicitation

Publisher agrees that neither Publisher nor any sub-publishers will approach or attempt to engage in a contract with any of Company’s clients (each such client, individually a “Client” and all such clients, collectively “Clients”) directly or indirectly via a Client’s Ad agency, broker or any other person or entity. Company will promptly reply in writing to any inquiries received from Publisher regarding the status of any person or entity as a Company Client so as to aid Publisher in its efforts to comply with the non-solicitation provisions of this Agreement. Because Company will be irreparably harmed by Publisher’s conduct, and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct. Publisher agrees that Company shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violative conduct by Publisher.

6. Fraud

6.1. Monitor and Inactivation

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

If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre- population of forms or mechanisms not approved by Company or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by Company, Publisher will forfeit its entire commission for all programs and its account will be terminated. In addition, in the event that Publisher has already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher.

6.2. Adware and Spyware prohibited

Publisher shall at no time, engage in, disseminate, promote or otherwise distribute, any Company Publisher marketing campaign through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable). This prohibition applies equally to Publisher and any of its business Publishers, publishers, etc.  In the event that Company discovers that Publisher is engaging in, disseminating, promoting or otherwise distributing, any Company Publisher-related contextual marketing campaign which results in a violation of the Agreement, then Company may, in its sole discretion, terminate this Agreement and immediately halt any and all Company Publisher-related contextual marketing campaigns, making payment only on legitimate earnings of Publisher as accrued through the date and time of termination. Publisher agrees and acknowledges that if it violates its obligations under this Addendum and/or the Agreement, Company shall be entitled to seek: (i) injunctive relief without the requirement of posting a bond; and/or (ii) any and all other remedies that Company may have at law or in equity.

7. Payment

Publisher will be paid per the terms of each Program as set forth in any Insertion Order. Company shall pay any amounts due less any taxes required to be withheld under applicable law, provided that Company may, in its discretion, withhold payments until such time as the Advertiser has paid Company for any Program. In addition to any other remedies that may be available to Company, in the event of any breaches by Publisher of these Terms and Conditions, Publisher shall forfeit its rights to any amounts owed by Company to Publisher. Company reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. Company shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions or disputes regarding the data or payout provided by Company needs to be submitted in writing within five (5) business days of receipt, otherwise the information will be deemed accurate 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.

8. Co-Registration Campaigns

With respect to Publishers who are running co-registration campaigns to generate leads (“Leads”) for Advertisers, the following specific terms and conditions shall apply:

8.1. Approval of Publisher’s Site(s)

No Program may go live until such time as Company, and if necessary the applicable Advertiser, have approved, in writing, (a) all sites to be used by the Publisher for each Program and (b) the transfer of leads in the form of either a successful post for real-time transfer or approval of the test file for batch or FTP files.

8.2. Publisher’s Privacy Policy

Publisher represents and warrants that Publisher’s privacy policy permits the collection, use and transfer of data as contemplated hereby and the Program Terms.

8.3. Scrubbing Leads

Each Program shall have its own criteria for determining the validity of a lead (the “Lead Requirements”). Company may detect and track all Invalid Leads, which are determined on a real-time basis. Company shall only pay for leads deemed valid by this system. At the sole discretion of Company, leads may also subsequently be deemed invalid for (i) fraudulent activities including but not limited to changing approved lead generation forms, publishing an offer on an unapproved site, utilizing automated software or manpower to complete co-registration forms, incentivization of co-registration forms and/or a publisher’s inability to provide the user IP and time/date stamp for each lead or (ii) non-compliance with co-registration programs including but not limited to exceeding lead caps as communicated by a Company Manager and/or going live with a co-registration offer prior to written approval of a creative and data transfer by an Company Manager.

8.4. Use of Leads

Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of Company or its Advertiser. Therefore, other than providing the Leads to Company for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes. All right, title and interest in the Leads shall vest exclusively in Company or its Advertisers.

8.5 No Alteration of Approved Co-Registration Forms

Publisher may not, in any way, alter or modify the Co-Registration Forms, without the prior written consent of Company.

9. Term and Termination

Either party may terminate this Agreement on three (3) business days’ advance notice to the other party. In the event either party in good faith believes that the other party is in violation of applicable law or in breach of any terms of this Agreement, such party shall have right to terminate the Agreement immediately upon written notice to the other party. Company further reserves the right to terminate this Agreement and Publisher’s participation in the services hereunder without prior notice to Publisher.

Termination notice will be provided via email and will be effective immediately, meaning, among other things, that Publisher must immediately cease all advertising activities. All moneys then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained in paragraphs, 10, 11, 12, 13, and 14 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.

10. Representations and Warranties/Covenants

10.1. Mutual Representations

Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.

10.2. Publisher Representations

Publisher represents and warrants as follows:

  • Publisher’s Media is currently in compliance with all applicable State and Federal laws (including without limitation the CAN-SPAM Act, effective January 1, 2004 (the “CAN-SPAM Act”);
  • Publisher’s Media does not contain or promote, nor links to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, product, service or activity;
  • Publisher’s database consists of only permission (affirmative) based opted-in email addresses; and
  • Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher’s Media.

10.3. Publisher Covenants and Non-Circumvention

Publisher covenants that it shall not:

  • send unsolicited commercial e-mail (SPAM) (i.e., it will send commercial emails in connection with any Programs to only those e-mail addresses that have consented to receive such commercial e-mails);
  • post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from Company;
  • promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or otherwise objectionable or illegal content, or any other content referenced in paragraph 1.2;
  • use the Site in any manner other than that which is specifically contemplated herein;
  • engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs; and
  • while an approved Publisher and for one hundred eighty (180) days thereafter, participate in any performance-based advertising relationship with any Advertiser within Company’s network, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of Company. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, Company will be entitled to damages in the amount of forty-five percent (45%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Publisher;
  • Publisher shall at no time, engage in, disseminate, promote or otherwise distribute, any Company marketing campaign through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable). This prohibition applies equally to Publisher and any of its business affiliates, publishers, etc.  In the event that Company discovers that Publisher is engaging in, disseminating, promoting or otherwise distributing, any Company Publisher-related contextual marketing campaign which results in a violation of the Agreement, then Company may, in its sole discretion, terminate this Agreement and immediately halt any and all Company Publisher-related contextual marketing campaigns, making payment only on legitimate earnings of Publisher as accrued through the date and time of termination. Publisher agrees and acknowledges that if it violates its obligations under this Addendum and/or the Agreement, Company shall be entitled to seek: (i) injunctive relief without the requirement of posting a bond; and/or (ii) any and all other remedies that Company may have at law or in equity; and
  • place an Offer with inappropriate content, which includes, but is not limited to, content that (i) promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography, adult-oriented content such as phone sex or escort services, expletives or inappropriate language; (ii) promotes gratuitous violence, abuses or threatens physical harm;  (iii) promotes illegal or unethical activity, racism, hate, “spam,” mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes use of illegal substances or activities such, how to build a bomb, counterfeiting money and software pirating (e.g., Warez, Hotline); (v) is libelous, defamatory, infringing, false, misleading or contrary to public policy; (vi) is otherwise prohibited by Federal or state law; and/or (vii) may bring Company and/or its associated Advertisers negative publicity.  
  • engage in any spoofing, redirecting or trafficking from adult-related websites in an effort to gain traffic or websites that are point, lottery or rewards based and encourage users to click on Offers or use Offers to generate revenue for users to win points, get rewards, or other incentives are prohibited unless expressly approved in writing from Company.
  • violate any third-party terms and conditions, which includes, but is not limited to (i) unauthorized use of a third-party web site for commercial gain or post bulletins to non-owned account.
  • use deceptive or misleading practices such as the use of spyware, adware, devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear as if a consumer is generating a lead.
  • utilize 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 covenants that it shall:

  • Conduct the web advertising campaign for Advertiser in accordance with the highest industry standards;
  • Provide within one (1) business day after request there from, the IP Information, together with such other related information that Company may request. Failure to provide such information may result in termination or suspension of the Publisher and/or the deactivation of all links in any Programs downloaded by Publisher.

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 and Publisher shall forfeit all rights to any compensation theretofore owed to it by Company. The foregoing rights shall be in addition to any other remedies available to Company. Publisher acknowledges and agrees that Company shall not be responsible for the Advertisers’ violation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act and Regulation (EU) 2016/679 GDPR.

11. Privacy Policy

Publisher shall maintain and post in a conspicuous manner on all its websites involved in the Programs, a privacy policy that clearly and adequately describes how consumer information is collected and used.

12. Customer Information; Non-Disclosure; Confidentiality

All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of Company, its affiliates, publishers and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner.

Publisher shall maintain such data in a secure manner, consistent with industry standards. All information provided to Publisher hereunder shall be kept strictly confidential.

13. Limitation of Liability; Disclaimer of Warranty

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 Ad or Program made available on the Site, or any product or service advertised in connection therewith. Company has no liability to Publisher for unapproved materials, including all copy, images, URL names, and search terms used by Publisher to promote the client partner. Company makes no representations whatsoever about any other website which Publisher may access through the service. When Publisher accesses a website that is not associated with and independent from Company, Publisher acknowledges that Company has no control over the content of that website. Furthermore, a link to a non- Company website does not mean that Company endorses or accepts any responsibility for the content or the use of such website. It is Publisher’s sole responsibility to take precautions to ensure that websites, downloads, attachments, and other such files are free of such items as Trojan horses, worms, viruses, and other items of a destructive nature.

14. Mutual Indemnity

14.1. Mutual Indemnity.

Each Party, Publisher and Company, will defend, indemnify, and hold harmless the other Party, the Advertisers, and their affiliates, officers, directors, employees, agents, successors and assigns against any and all claims, actions, losses, liability, damages, costs, and expenses, including any direct, indirect or consequential loss, liability, damage, expense (including reasonable attorney’s fees and expenses) (collectively “Claims”) arising from any breach of any of these Terms and Conditions or any Program Terms. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder. Publisher hereby acknowledges that the Advertisers are intended third party beneficiaries of the foregoing indemnification obligation.

14.2. Notification of Legal Action.

Publisher will immediately notify Company of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.

16. General

16.1 Entire Agreement

These Terms and Conditions, together with these terms for each of the Programs as set forth in any Insertion Order constitute the entire agreement between the parties and supersede all prior agreements or understandings between the parties.

16.2 Controlling Law

These Terms and Conditions, the terms of the Programs and the relationship contemplated thereby, shall be governed by the laws of the United States and the State of Minnesota, without giving effect to principles of conflicts of law. Each party, to the extent permitted by applicable law, hereby irrevocably and unconditionally (i) submits to the general jurisdiction of the federal and state courts located in Hennepin County, Minnesota; (ii) agrees that any action or proceeding concerning this agreement will be brought exclusively in such courts; and (iii) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding in any such court was brought in an inconvenient court and agrees not to claim or plead the same.

16.3 Waiver

No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.

16.4 Assignment

Publisher may not assign any of its rights hereunder without the prior written consent of Company, which may be withheld for any reason.

16.5 Severability

In the event that any provision of these Terms and Conditions is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of these Terms and Conditions shall remain valid and enforceable according to its terms.

16.6 Relationship

The parties agree that Company is acting as an independent contractor in performing the Services and that the relationship between the Company and Publisher shall not constitute a partnership, joint venture or agency. Neither Company nor any of Company’s employees or agents (collectively referred to herein as the “Employees”) (i) is an employee, agent or legal representative of Publisher, or (ii) shall have any authority to represent Publisher or to enter into any contracts or assume any liabilities on behalf of Publisher. Company retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees. Neither Company nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.

16.7 No Publicity

Publisher may not make any mention of Company or any Company client in any publicity materials advertising or otherwise presenting information on your company and your services, including without limitation listing Company or any of its clients in your customer lists, without the written consent of Company, whose consent may be withheld for any reason or for no reason.

16.8 Headings

Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement

16.9 Notice

Any notice, communication, or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to (a) Publisher at the address provided in the registration, and (b) Company at 224 West 35th Street New York New York 10001 Suite 500-317United States