Publisher Terms

Last updated: June 29, 2023

These Publisher Terms (“Agreement”) set forth the terms and conditions pursuant to which the person or entity agreeing to this Agreement (“Publisher”) may provide certain types of Traffic (defined below) to one or more of the following companies and/or their proprietary online advertising marketplaces (“Marketplace”):

1. Great LLC d/b/a ITMedia, a Nevada limited liability company
2. HSH.COM LLC, a Nevada limited liability company, together with its subsidiary QuinStreet Media, Inc., or
3. any other company with whom Publisher enters into an insertion order that incorporates this Agreement by reference.

As applicable, each of the parties referenced in sections (a) - (c) of the previous sentence are referred to herein individually or together as “Company”. The relevant Company party(ies) and Publisher are together referred to herein as the “Parties”, or each individually as a “Party”.

1. INSERTION ORDERS. This Agreement is not effective until Publisher and one or more Company parties execute one or more insertion orders referencing this Agreement and describing (a) the Company party to which Publisher is sending Traffic, (b) the type of Traffic, (c) pricing, and (d) any other relevant details (“IO”). Where the terms of this Agreement and an IO conflict, the terms of the IO shall prevail to the minimum extent necessary to resolve the conflict.

2. PUBLISHER OBLIGATIONS.

2.1. Traffic. Publisher shall provide Traffic to Company as set forth in more detail in an IO. “Traffic” means a click, impression, sale or any other action to be delivered by Publisher to Company as specified in an IO.

2.2. Leads and Lead Data. If Publisher provides any Leads or Lead Data to Company or the Marketplace, Publisher hereby agrees to the terms and conditions of the Lead Marketplace Platform Addendum, which is attached hereto as Appendix 1 and incorporated herein. As used in this Agreement, (a) “Lead” means a request from a consumer for a financial products or services that is submitted by Publisher to Company or the Marketplace and (b) “Lead Data” means the data associated with such a Lead, which may include Personal Information (defined below) about the consumer.

2.3. Direct Email Traffic. If Publisher directly generates Traffic through email marketing (eg. by sending emails to consumers that directly advertise or link to Company websites or Company’s clients’ websites), Publisher hereby agrees to the terms and conditions of the Email Marketing Addendum, which is attached hereto as Appendix 2 and incorporated herein.

2.4. Indirect Email Traffic. If Publisher sends any email that links to a non-Company website containing advertisements for Company’s brand(s) or Company’s clients’ brand(s), Publisher covenants, represents and warrants that all such emails will comply with all applicable laws, rules and regulations, including, without limitation, CAN-SPAM, California Business & Professions Code Section 17529.1 et seq, and the Federal Trade Commission Act.

2.5. Privacy Policy. Publisher covenants, represents and warrants that each website from which Traffic is generated hereunder (“Publisher Website”) will include a privacy policy that describes that website’s practices pertaining to the collection, use and sharing of consumer information and that complies with all applicable laws, rules and regulations.

2.6. Traffic Restrictions. Publisher shall not (nor permit or encourage any person or entity to): (a) create, alter or inflate Traffic through any misleading or deceptive practice, method, or technology, or (b) use incentivization or compensation of any kind to generate Traffic. Further, unless otherwise approved in writing (including through an IO) Publisher shall not (nor permit or encourage any person or entity to) generate Traffic directly using SMS, auto-dialers, or telemarketing.

2.7. Creative Restrictions. Publisher Websites and Publisher Creative (defined below) shall not promote, contain or link to any destination or material that includes, contains or promotes (a) pornographic or other sexual material; (b) gratuitous displays of violence; (c) hatemongering in any form (e.g., racial, political, ethnic, etc.); (d) incentivized offers (or the appearance thereof); (e) defamatory, abusive or threatening material, (f) unauthorized audio or video reproduction, downloads or content, (g) any spyware, adware, trojans, viruses, worms, spybots, keyloggers or any other form of malware, (h) misrepresentations of an affiliation with any person/entity, or (i) any illegal content.

2.8. Subcontractors. Publisher shall not generate any Traffic through the use of any subcontractors, Publisher networks, offer boards or networks, or any other third party (collectively, “Subcontractors”) unless the use of Subcontractors is approved by Company in writing (including via an IO). If so authorized, Publisher must comply with the following requirements: (a) a tracking code mechanism must be that permits Company to distinguish Publisher Traffic generated from each Subcontractor without providing the identity of the Subcontractor (e.g., Subcontractor 1, Subcontractor 2), (b) Publisher must have entered into a written agreement with each such Subcontractor that requires the Subcontractor to comply with all applicable laws, rules and regulations, (c) Publisher will terminate any Traffic generation from any Subcontractor upon Company’s request, and (d) if Company demonstrates a legitimate legal or compliance need to know the identity of a Subcontractor, Publisher will disclose the identity of the Subcontractor to Company, which information shall be Publisher’s Confidential Information (defined below). Publisher shall be responsible for the acts and omissions of its Subcontractors.

2.9. Guidelines. Publisher will make commercially reasonable efforts to comply with any Company advertising guidelines provided in writing to Publisher and will comply with any updates to such guidelines within three (3) business days’ written notice of such updates. If Publisher is not willing or able to comply with such guidelines, Publisher may terminate this Agreement by providing written notice to Company.

3. COMPANY OBLIGATIONS. Company will permit Publisher to provide Traffic to Company under the terms and conditions described herein and in any applicable IO. Company’s use of all such Traffic shall comply with all applicable laws and any relevant requirements contained herein and in the applicable IO.

4. DATA PRIVACY AND SECURITY.

4.1. Personal Information. As used in this Agreement, “Personal Information” means any information that can be used to directly or indirectly identify an individual consumer, such as a name, an identification number, location data, an online identifier or information pertaining to an individual’s physical, physiological, genetic, mental, economic, cultural or social identity relating to that consumer.

4.2. Requirements. Each Party shall: (a) only collect, use, retain, share or otherwise process Personal Information in compliance with applicable law, including all applicable data privacy and security laws, rules and regulations; (b) implement and maintain commercially reasonably administrative, physical and technical safeguards to protect such data, including, without limitation, (i) implementing reasonable access controls within applications, operating systems and equipment, (ii) implementing appropriate physical controls to prevent unauthorized physical access to such information and (iii) any other safeguards necessary to comply with applicable data privacy or security laws or regulations. For the avoidance of doubt, the foregoing shall not limit any of the requirements contained in the Marketplace Platform Addendum if such addendum is applicable to Publisher’s performance hereunder.

5. CREATIVE MATERIAL; INTELLECTUAL PROPERTY.

5.1. Certain Definitions. As used in this Agreement:

1. “Creative” means any content, creative assets, advertising listings, forms, design, software or technology platforms, Marks, together with any associated links and hyperlinks which direct Traffic, and any imbedded bots and tracking tools contained in any link.
2. “Company Creative” means any Creative provided by Company to Publisher to direct Traffic.
3. “Publisher Creative” means any Creative used by Publisher to direct Traffic that is not provided by Company or that has been materially modified from Company Creative.
4. “Intellectual Property” means all intellectual property rights, including Marks, trade dress, domain names, websites, copyrights, patents, trade secrets, software, know-how and proprietary technology.
5. “Marks” mean any trade names, logos, trademarks, service marks, or international equivalents of the foregoing, whether or not registered.

5.2. Company Creative. Company may provide Publisher with Company Creative that Publisher may use to direct Traffic. “Company Creative” is provided to Publisher via the Publisher Panel. Unless otherwise agreed in writing to by the Parties (including through an IO) Publisher may only generate Traffic using Company Creative. Publisher must promptly comply with all directions by Company to discontinue, modify or replace any Company Creative in use by Publisher.

5.3. No Modification. Unless approved in writing by Company (including through an IO or email), Publisher shall not materially alter, modify or otherwise change the Company Creative, including any links therein. Company shall not be liable to Publisher for any failure by Publisher to use Company Creative in compliance with this Agreement.

5.4. Publisher Creative. Publisher may only use Publisher Creative to generate Traffic if approved in writing by Company (including through an IO or email). Prior to generating any Traffic using Publisher Creative, Publisher must obtain Company’s prior written approval of all Publisher Creative. In the event Company requires edits or changes to Publisher Creative, Publisher shall make commercially reasonable efforts to implement such changes or edits. In the event Company requires edits or changes to approved Publisher Creative in order to comply with applicable law or with Company policies, Publisher will implement such changes as soon as practicable. In the event Publisher is unable or unwilling to make requested changes or edits, either Party shall have the right to immediately terminate this Agreement. For the avoidance of doubt, if Publisher materially modifies Company Creative, then such modified Creative is Publisher Creative and subject to the requirements of this paragraph.

5.5. License. Company hereby grants Publisher a limited, fully paid, non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted herein) license during the term of this Agreement to use the Company Creative solely for the purposes contemplated by this Agreement. Company may terminate this license in its sole discretion with notice to Publisher. Publisher must promptly discontinue use of Company Creative upon receiving notice from Company or upon the termination or expiration of this Agreement or any applicable IO.

5.6. Tracking. Company may include in each of the Company Creative a special transaction tracking code (“Transaction Tracking Code”). Publisher shall not modify, circumvent, disable, impair, or otherwise interfere with any Transaction Tracking Code and/or other technology or methodology required or provided by Company for all Creative.

5.7. Intellectual Property. Subject to the limited licenses granted in this Agreement, each Party shall own and shall retain all right, title and interest in its Intellectual Property and Confidential Information (defined below). Except as specifically provided for in this Agreement, neither Party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any Intellectual Property of the other Party without the express prior written consent of such Party.

5.8 Data Ownership. Except as otherwise provided for herein (including any appendix hereto) or in an applicable IO, Company will exclusively own all data collected or generated pursuant to this Agreement, including performance data and any suppression lists (collectively, including any derivative thereof “Company Data”). Publisher shall not use, resell, redistribute, remarket to, or otherwise commercialize Company Data except as provided for herein or in an IO or except as required to comply with applicable law. For the avoidance of doubt, this paragraph does not cover Lead Data provided pursuant to the Lead Marketplace Platform Addendum attached hereto as Appendix 1.

6. PAYMENT.

6.1. Fees; Calculation. Company will pay Publisher the fees described in the applicable IO in accordance with the terms below. Unless otherwise set forth on an IO, Company shall calculate fees owed to Publisher. Company shall compile, calculate, and make available to Publisher the data used by Company to determine fees due to Publisher (“Fee Data”).

6.2. Timing. Unless otherwise set forth on an IO, Company will pay Publisher on a net-30 basis following the end of each calendar month. At Company’s option, (a) payments via wire transfer for amounts less than $1,000 may roll over to the next pay period and (b) payments via any method besides wire transfer of less than $5,000 will roll over to the next pay period. If Publisher has accrued less than the applicable payment threshold and has not accrued any new fees for a period of one-hundred and eighty (180) days, then Company’s obligation to make any payments of such previously accrued commissions is erased.

6.3. Earning Fees. Where applicable and unless otherwise provided in an IO, fees will not be “earned” until Company receives corresponding payment from Company’s advertiser clients. If Publisher receives a payment for Traffic which is later returned or refunded to a Company's advertiser client, Company may set off such payments against Publisher’s outstanding or future payments for Traffic. Company may require Publisher to provide a W-9, or similar tax identification information, as a condition precedent to Publisher receiving any fee payments.

6.4. Invalid Traffic. Company shall not be obligated to pay for and may withhold payment to Publisher for Traffic that was generated in violation of the terms of this Agreement or that is otherwise illegal, deceptive or fraudulent as reasonably determined by Company (“Invalid Trafic”); provided, however that Company must provide Publisher with a reasonably detailed written explanation of its basis for such determination. If Publisher fraudulently or unlawfully generates Traffic, as determined by Company in its reasonable discretion, Publisher will forfeit all unpaid Fees and this Agreement will be immediately terminable by Company; provided, however that Company must provide Publisher with a reasonably detailed written explanation of its basis for such determination.

6.5. Disputes. Questions or disputes regarding the calculations of fees must be submitted in writing to Company within three (3) business days of the date that Fee Data is posted on Company’s Publisher Panel; otherwise, the information contained will be deemed accurate and accepted by Publisher. Company and Publisher will work together in good faith to investigate and resolve any Fee Data-related disputes.

6.6 Denomination; Taxes; International Payments. All payments shall be in U.S. Dollars. Publisher shall pay all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Publisher’s participation in the Marketplace. Publisher acknowledges that for certain types of payments, including but not limited to international wire transfers and international PayPal payments, additional fees may be charged by Company to cover the additional costs associated with these forms of payments. For international wire transfers this fee is generally $50 USD and for international PayPal payments this fee is generally a 3% fee capped at $30 USD; provided, however, that these costs may vary.

6.7. Breach. Company may withhold payment under this Agreement if it reasonably believes Publisher is in breach of a material term of this Agreement and Company has provided notice of such breach to Publisher.

6.8. Negative Account Balances. If Publisher has a negative account balance because Publisher’s account has been charged back certain compensation and Publisher’s account balance is not sufficient to cover the charge back amounts, the Publisher shall immediately remit payment to Company in an amount sufficient to bring Publisher’s account balance to zero. Negative account balances are subject to 1.5% interest per month, or the highest amount allowed by law, whichever is higher.

7. TERM AND TERMINATION

7.1. Term. The Term of this Agreement commences on the effective date of the first IO and continues as long as an IO is in effect. If an IO does not specify an end-date, then the term of that IO will be one (1) year. If the stated term of an IO has expired and Publisher is nevertheless sending Traffic to Company pursuant to that IO, then the term of that IO shall be automatically extended for so long as Publisher is providing Traffic to Company pursuant to that IO.

7.2. Termination. Unless otherwise set forth in an IO, either Party may terminate this Agreement and any IOs then in effect upon three (3) business days written notice to the other Party. This Agreement and any applicable IO shall automatically terminate if Publisher does not generate any Traffic for six consecutive months; provided, however, that the Parties my reinstate this Agreement by entering into a new IO that references this Agreement after such termination.

7.3. Suspension. Company may suspend Publisher’s participation in the Marketplace at any time upon written email notice to Publisher if Company reasonably believes such suspension is necessary to protect Company from legal harm or materially adverse financial consequences. Publisher shall pause any live campaigns as soon as practicable but in any no event within more than three (3) business days after receipt of such notice.

7.4. Effect of Termination. Upon termination of this Agreement for any reason (a) Company shall pay Publisher any outstanding amounts owed to Publisher as of the effective date of such termination in accordance with the payment timing otherwise set forth herein or in an applicable IO, (b) Publisher shall immediately stop generating or sending any Traffic to Company, and (c) all licenses and rights granted to Publisher herein shall immediately cease and terminate

8. RELATIONSHIP BETWEEN THE PARTIES.

8.1. In General. The Parties’ relationship is one of independent contractors and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, or employment relationship between the Parties.

8.2. Leads. As described in Section 2.2 above, if Publisher provides any Leads or Lead Data to Company, Publisher agrees to the terms of the Lead Marketplace Platform Addendum attached hereto as Appendix 1. With respect to Leads and Lead Data, Company acts as Publisher’s service provider by providing it access to the Marketplace to sell its Leads; Publisher does not act as Company’s service provider with respect to Leads or Lead data.

8.3. Other Traffic. With respect to all Traffic besides Leads, Publisher acts as Company’s service provider.

9. RESTRICTIVE COVENANTS.

9.1. Non-Solicitation of Employees. During the term of this Agreement, Publisher shall not, directly or indirectly, solicit for employment or services, any employee, consultant or independent contractor of Company. Notwithstanding the foregoing, Publisher shall not be prevented from soliciting for employment any person who (a) responds to a general advertisement, (b) initiates employment discussions with Publisher, or (c) has been terminated by Company.

9.2. Non-Solicitation of Company Advertisers. During the term of this Agreement and for one (1) year thereafter, Publisher shall not knowingly, directly or indirectly, solicit, divert, or appropriate any of Company's advertiser clients in such a manner that may bypass Company’s relationship with such advertiser client to Company’s economic detriment. The foregoing restriction shall not apply to such Company advertiser clients with whom Publisher can demonstrate a previously existing business relationship.

9.3. Trademark and Keyword Bidding. Company maintains a list of banned keywords at the url https://itmedia.xyz/docs/trademark-keyword-bidding.php. Publisher shall not and shall not permit or encourage any third party to: (a) bid on any of the keywords contained in the aforementioned list or any variations of these keywords or (b) use the keywords in ad copy during the term of this Agreement. Company may modify this list from time to time; provided, however, such that any such modification is not binding on Publisher until Publisher has received reasonably prior notice of such modification.

10. AUDIT RIGHTS; MONITORING; COMPLIANCE.

10.1. Audit Rights. Publisher shall maintain true and correct books containing a record of all information pertinent to its participation in the Marketplace during the term of this Agreement and for any applicable statute of limitations period. Company or its agent may review, at Company’s expense, during regular business hours and upon not less than five (5) days' written notice, such relevant books and records to verify Publisher’s compliance with this Agreement and all laws, rules, and regulations. Any such review will be made not more than twice in each calendar year during the term of the Agreement unless a prior audit has disclosed a breach of this Agreement or violation of any laws, rules, or regulations. If Company discovers any breach of this Agreement or violation of any laws, rules, or regulations, then the audit shall be at the sole cost and expense of Publisher.

10.2. Monitoring. Publisher acknowledges and agrees that Company may monitor, via manual or automatic means, the Publisher Websites to ensure compliance with this Agreement.

10.3. Compliance Requests. Publisher shall timely respond to Company’s requests for information in furtherance of its legal and regulatory compliance program. Publisher covenants, represents and warrants that all such information provided to Company is true and accurate in all material respects.

11. REPRESENTATIONS AND WARRANTIES. Each Party covenants, represents, and warrants to the other Party that (a) it has all necessary rights and authority to enter into this Agreement and to grant the rights and licenses hereunder, (b) the execution or electronic acceptance of this Agreement and the performance of its respective obligations hereunder do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound, and (c) its performance hereunder will comply with all applicable laws, rules and regulations, including, without limitation, the Federal Trade Commission’s Standards for Safeguarding Customer Information and Section 5 of the Federal Trade Commission Act. Company further covenants, represents and warrants to Publisher that (i) it has all rights necessary on behalf of itself and, if relevant, its clients or licensors, to provide the Creative Material for use by Publisher as contemplated herein, and (ii) the Company Creative and Publisher’s use thereof as anticipated herein will not violate or infringe the rights of any third parties.

12. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE OBLIGATIONS PERFORMED BY COMPANY HEREUNDER, THE CREATIVE MATERIAL, AND THE MARKETPLACE ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE DISCLAIMER OF WARRANTIES PROVIDED ABOVE IS VOID TO THE EXTENT IT IS NOT PERMITTED UNDER APPLICABLE LAW

13. LIMITIATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY LOSS OF DATA, EQUIPMENT DOWNTIME, OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CONNECTION WITH PUBLISHER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, EACH PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAYABLE TO PUBLISHER BY COMPANY UNDER THIS AGREEMENT IN THE SIX (6) COMPLETED CALENDAR MONTHS PRECEDING THE CLAIM GIVING RISE TO ANY SUCH LIABILITY. COMPANY WILL HAVE NO LIABILITY TO PUBLISHER FOR CREATIVE MATERIAL THAT IS NOT PROVIDED OR APPROVED BY COMPANY, INCLUDING ALL COPIES, IMAGES, DOMAIN NAMES AND SEARCH TERMS USED BY PUBLISHER. THE LIMITATIONS OF LIABILITY PROVIDED ABOVE ARE VOID TO THE EXTENT THEY ARE NOT PERMITTED UNDER APPLICABLE LAW.

14. CONFIDENTIAL INFORMATION.

14.1. Definition. As used herein, “Confidential Information” means any of the following information a Party receives from or through the other Party: (a) the terms of this Agreement and any IO, (b) any pricing, technical, marketing, financial, employee, planning and other confidential or proprietary information, including customer and supplier lists, (c) any information that by its nature or under the circumstances a reasonable person should know is confidential and (d) any information that is: (i) sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use and (ii) the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.

14.2. Confidential Treatment. Each Party shall safeguard the other Party’s Confidential Information from unauthorized use, access, or disclosure using no less than a commercially reasonable degree of care and including, without limitation, implementing reasonable security measures and operating procedures. Neither Party will use, exploit or disclose any Confidential Information of the other Party except for purposes of carrying out the business relationship between the Parties contemplated by this Agreement (“Purpose”), and for no other purpose whatsoever. Notwithstanding the foregoing: (a) each Party may use or disclose the other Party’s Confidential Information to the extent required to comply with applicable law; provided that it notifies the other Party of the required disclosure or use promptly and in writing and cooperates with the other Party, at the other Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure; (b) each Party may share the other Party’s Confidential Information with its employees, officers, attorneys, accountants, and financial advisors who (i) need access to such Confidential Information to perform legitimate services, (ii) are informed of its confidential nature; and (iii) are bound by reasonable confidentiality obligations; and (c) the obligations set out in paragraph shall not apply to Confidential Information which the receiving Party can demonstrate (I) is or has become publicly known other than through breach of this paragraph, (II) was in possession of the receiving Party prior to disclosure by the other Party, (III) was received by the receiving Party from an independent third party who has full right of disclosure or (IV) was independently developed by the receiving Party.

14.3. Destruction and Return of Confidential Information. Upon the request of Company or the termination of this Agreement, Publisher shall promptly either return or delete any of Company’s Confidential Information in its possession. Upon Publishers request, Company shall promptly either return or delete any of Publisher’s Confidential Information in its possession. If requested by the other Party, each Party shall deliver a certificate executed by one of its duly authorized officers confirming it compliance with the requirements of this paragraph.

15. INDEMNIFICATION. Publisher (in this section, “Indemnitor”) shall indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, advertiser clients, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, incurred by Indemnified Party resulting from any claim of a third-party (including Company’s advertiser clients) arising out of or occurring in connection with Indemnitor’s or its service providers’ negligence, willful misconduct, or breach of its obligations contained in this Agreement (including any applicable IO and appendix hereto). Indemnitor shall not enter into any settlement without (as applicable) the applicable Indemnified Party’s prior written consent.

16. ADDITIONAL REQUIREMENTS & BEST PRACTICES.

16.1. Short-Term Consumer Loan Traffic (eg. Personal Loans & Installment Loans). If Publisher provides any short-term consumer loan Traffic to Company (eg. personal loan or installment loan traffic), Publisher shall comply with the terms of the Online Lenders Alliance Best Practices, as they may be modified from time to time, and which can be found at: https://onlinelendersalliance.org/about/best-practices/. For the avoidance of doubt, this Section 16.1 does not apply to Publisher if it only sends mortgage Traffic to Company and does not send any short-term consumer loan traffic to Company.

16.2. Mortgage Traffic. If Publisher provides any mortgage Traffic to Company, Publisher shall comply with, and ensure that all mortgage Traffic it sends was generated in compliance with the the Mortgage Acts and Practices Advertising Rule (Regulation N) and the Real Estate Settlement Procedures Act. For the avoidance of doubt, this Section 16.2 only applies to Publisher to the extent it only provides mortgage Traffic to Company.

17. GENERAL PROVISIONS.

17.1. Publicity. Neither Party may reference the other Party in any publicity without the written approval of the other Party.

17.2. Force Majeure. In the event either Party is unable to perform its obligations under the terms of this Agreement because of acts of God, strikes, equipment or transmission failure or damage reasonably beyond its control, or other causes reasonably beyond its control, such Party shall not be liable for damages to the other for any damages resulting from such failure to perform or otherwise from such causes.

17.3. Choice of Law. This Agreement shall be governed by and construed under the laws of the State of Nevada, without giving effect to any choice of law or conflict of law rules or provisions.

17.4. Disputes. Should a dispute arise between the parties (“Dispute”), the Dispute shall be referred by each party to an officer/manager of their respective companies with authority to settle the Dispute and shall meet to settle the Dispute. If the officers/managers cannot resolve the Dispute, the Dispute shall be settled by arbitration as provided below

17.5. Arbitration. Any Dispute not resolved as set forth above shall be arbitrated individually and must not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted by a single arbitrator under the then-current commercial arbitration rules of the American Arbitration Association, provided that the arbitrator shall be chosen from a panel of arbitrators knowledgeable about online advertising. The decision and award of the arbitrator shall be final and binding, and the award so rendered may be entered in any court having jurisdiction thereof. If offered by the arbitrator, the arbitration will be virtual; otherwise the arbitration will be held in Clark County, Nevada. Judgment on the arbitration award may be entered into any court having jurisdiction thereof. If arbitration of a Dispute occurs, each party will pay its own attorney’s fees and other costs associated with arbitrating the Dispute. Nothing contained shall be construed to preclude Company from seeking injunctive relief to protect its rights pending an outcome in arbitration, nor limit any legal remedies available to Company. Company may elect to sue in any court of competent jurisdiction in Nevada, in lieu of and despite the alternative dispute resolution provision above. Company shall be entitled to an award of its reasonable costs and expenses (including, without limitation attorneys’ fees), in any action or proceeding in connection with, arising out of, or under the Agreement.

17.6. Assignment. Publisher may not assign, transfer, or delegate any of its rights or obligations under this Agreement without the prior written consent of Company, and any attempts to do so shall be null and void; provided, however, that Publisher may assign this Agreement in connection with a merger or consolidation (or other similar transaction) or the sale of all or substantially all of its assets with reasonable prior notice to Company. Company may assign its rights and obligations under this Agreement upon prior written notice to Publisher. Subject to the foregoing limitations, this Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.

17.7. Entire Agreement. This Agreement and all applicable appendices and IOs represent the complete and entire expression of the agreement between the Parties, and shall supersede all other agreements, whether written or verbal, between the Parties covering the subject-matter covered herein.

17.8. Modification. Company may modify this Agreement by posting an updated version on the Publisher Panel. Such modification will be effective the sooner of (a) Publisher electronically accepting the updated version on the Publisher Panel or (b) thirty (30) days after Company provides reasonable notice to Publisher. Publisher acknowledges that an email to the email address(es) Publisher provided in the Publisher Panel or the most recent IO is reasonable notice. If Publisher is not willing to agree to such modifications, Publisher may terminate this Agreement with notice to Company (including by email).

17.9. Non-Waiver; Severability. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision in this Agreement is determined to be invalid, illegal, or unenforceable under any law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.

17.10. Notice. Except as otherwise provided herein, any notice to or request for approval from Company hereunder must be submitted by email to (a) compliance@itmedia.xyz and (b) to Publisher’s primary business contact within Company. Any notice, approval or other communication to Publisher hereunder must be submitted either (a) by email or (b) by overnight express mail or certified or registered mail (postage prepaid, return receipt requested) – in either case, to the applicable address(es) Publisher provided on the Publisher Panel or on the most recently executed IO.

This Lead Marketplace Platform Addendum (“Addendum”) applies to any Publisher that provides any Leads or Lead Data to Company or the Marketplace pursuant to the Publisher Terms to which this Addendum is attached (the “Principal Terms”). Capitalized terms not defined herein have the meanings given to them in the Principal Agreement. In case of a conflict between this Addendum and the Principal Agreement, this Addendum will govern.

1. BACKGROUND. Company’s Marketplace allows publishers to sell Leads to Company’s advertiser clients who are willing to purchase such Leads. Publisher acknowledges that (a) it is solely responsible for any Leads its sells or attempts to sell through the Marketplace, and (b) the Marketplace is merely a marketing and sales platform.

2. LEADS.

2.1. Certain Definitions. As used in this Addendum:

1. “Sold Lead” means a Lead that is sold to an advertiser through the Marketplace.
2. “Unsold Lead” means a Lead that is submitted to the Marketplace by Publisher but that is not sold to an advertiser through the Marketplace. A Lead that is submitted to the Marketplace is an Unsold Lead until such time it is sold and becomes a Sold Lead (if at all).

2.2. Requirements. Publisher covenants, represents and warrants that (a) Publisher will use only submit Leads to the Marketplace that are generated in real time, but in no event later than fifteen (15) minutes following collection from the consumer (except in the event of technical issues that are notified to Company), (b) Publisher will use commercially reasonable efforts to ensure that the Lead was submitted directly by the end user and not by a third party on the end user’s behalf, (c) each Lead represents a request by the end-user for a financial product or service, and (d) all Leads are submitted by end-users who indicate that they are United States residents and at least eighteen years of age.

2.3. License For Sold Leads. Publisher hereby grants Company, and the Marketplace participants that acquire Sold Leads, a fully-paid, exclusive, transferable, sublicensable license to use Sold Leads and the Lead Data associated therewith (a) to respond to the end-user’s expression of interest in financial products and services (including by offering such products and services to the end-user), (b) to market other related consumer financial products or services to the end-user, and/or (c) as otherwise permitted or required by applicable law. If Company’s agreements with its advertiser clients that purchase Leads require Company to have ownership of any Leads or Lead Data purchased by such advertiser clients, then Publisher hereby grants Company joint-ownership of such Leads and Lead Data. Publisher acknowledges and agrees that the rights granted in the previous sentence does not shift any of the responsibility or liability related to the generation of such Leads from Publisher to Company; Publisher it is solely responsible for any Leads its sells or attempts to sell through the Marketplace.

2.4. License for Unsold Leads. Publisher hereby grants Company, and the Marketplace participants that review Unsold Leads, a limited, fully-paid, non-exclusive license to use Unsold Leads and the Lead Data associated therewith to (a) attempt to sell such Lead to a provider of the financial product or service requested by the end user (or a reasonably related financial product or service), (b) determine whether to offer the end-user such financial product or service and/or (b) as otherwise permitted or required by applicable law.

2.5. Exclusivity for Sold Leads. Unless otherwise approved in writing by Company (including in an IO), Publisher shall not resell, redistribute or remarket to Sold Leads or the Lead Data associated therewith. For the avoidance of doubt, the foregoing limitation does not apply to Unsold Leads.

2.6. Consent Data. Company reserves the right (upon reasonably prior notice) to require Publisher to include the following data with each Lead: (a) the URL of the webpage on which the Lead was generated, (b) consent or disclosure language agreed to be the end-user when submitting such Lead or (c) any other information reasonably necessary to reliably evidence consents related to such Lead. If Publisher provides any of the foregoing information, it covenants, represents and warrants to Company that such information is accurate. If Company exercises the foregoing right and Publisher is unable or unwilling to provide such information with each Lead, each Party shall have the right to terminate the applicable IO with notice to the other Party.

3. LEAD FORMS AND WEBSITES.

3.1. Certain Definitions.

1. “Publisher Forms” means forms located on websites owned and operated by Publisher or forms that are located on third-party websites but are hosted by Publisher such that the operator of the third-party website does not have access to the Lead Data generated on such forms.
2. “Third-Party Forms” means forms that are located on websites operated by third-parties and that are not hosted by Publisher, or that otherwise do not fall within the definition of Publisher Forms.

3.2. Publisher Forms. Unless otherwise approved by Company in writing (including via an IO), Publisher is only authorized to sell Leads through the Marketplace if the Lead Data is generated through Publisher Forms. Company may require Publisher to pass a source ID along with Lead that permits Company to identify Leads according to the source from which the end-user was referred to the relevant Publisher Form. This source ID need not disclose the identity of the source.

3.3. Third-Party Forms. If Company approves Publisher’s submission of Leads generated on Third-Party Forms to the Marketplace, then (a) the operators of such forms must be service providers of Publisher, (b) a tracking code mechanism must be used that permits Company to distinguish Leads generated from each such Third-Party Form, (c) Publisher must have entered into a written agreement with the operator of such Third-Party Form that requires the third-party to comply with all applicable laws, rules and regulations, (d) Publisher will stop submitting Leads from any specific Third-Party Form upon Company’s request, (e) Publisher must have reviewed such Third Party forms to ensure compliance with applicable law and the requirements of this Addendum, (f) Publisher must maintain records of the Third-Party Forms and the consents obtained and disclosures made on such forms for at least five (5) years, and (g) if Company demonstrates a legitimate legal or compliance need to know the identity of the operator of a Third-Party Form, Publisher will disclose the identity of that third-party to Company, which information shall be Publisher’s Confidential Information. Publisher shall be responsible for the acts and omissions of the operators of any Third-Party forms that are used to generate Leads that are submitted into the Marketplace.

3.4. Source ID; URLs. Notwithstanding anything to the contrary herein, upon request, Publisher shall provide Company with the URLs of the websites of any Publisher Forms or Third-Party Forms used to generate EOI Traffic.

3.5. Approval of Forms and Websites. Company reserves the right to require prior approval of each Publisher Website, Publisher Form or Third-Party Form from which Leads submitted to the Marketplace are generated. In the event Company requires edits or changes to such lead source prior to the start of Lead submissions hereunder, Publisher shall use commercially reasonable efforts to implement such changes or edits. In the event Company requires edits or changes to an approved Publisher Website, Publisher Form or Third-Party Form after Traffic generation has begun in order to comply with applicable laws, rules or regulations or with Company policies, Publisher will implement such changes as soon as practicable but in any event within three (3) business days of notice from Company. Thereafter, Company may pause Publisher’s participation in the Marketplace and withhold any payments owed until such required changes are implemented and approved by Company in writing. In the event Publisher is unable or unwilling to make requested changes or edits described above, each Party shall have the right to immediately terminate the relevant IO upon notice to the other Party.

4. CONSENT AND DISCLOSURES.

4.1. Approval of Consents and Disclosures. For the avoidance of doubt, Section 3.5 above (Approval of Forms and Websites) applies to the consents and disclosures described in this Section 4.1.

4.2. Required Consents. Publisher covenants, represents and warrants that each end-user whose Lead Data is submitted to the Marketplace has given their prior express written consent to each of the following, and any other consent that may be required by applicable law given the use of Lead Data expressly anticipated herein.

4.2.1. Consent to Data Sharing. Each end user must have provided necessary consents for Publisher to Share their Lead Data with Company and for Company to further share their Lead Data for the purpose of identifying products or services that may be available to the end user. Publisher acknowledges that (unless stated otherwise in the applicable IO) Company passes Lead Data on to both (a) providers of consumer financial products and services and (b) advertising networks, other marketers, brokers, and/or agents of record that, in turn, may pass the Lead Data on to such providers.

4.2.2. Consent to be Contacted. Each end user must have provided their prior express written consent as required by all applicable laws, rules or regulations so that Company and Company’s advertiser clients and third-party marketing partners may (a) call or send a text or SMS to any telephone number contained within the Lead Data, including through the use of an automatic telephone dialing systems and artificial or prerecorded voice and (b) email the end-user at the email address provided, in each case for marketing purposes. A list containing such advertiser clients and third-party marketing partners can be found at the following URLs:

1. For short-term consumer loan traffic: https://personalloans.com/third-parties
2. For mortgage traffic: https://www.hsh.com/third-parties/

4.2.3. FCRA Consent. Each end-user must have provided their consent and written instruction as required under the Fair Credit Reporting Act and any other applicable laws for credit providers to obtain the end-user’s consumer credit report from a credit reporting agency.

4.2.4. E-Consent. Each end user must have expressly consented to receive, use and accept electronic signatures, records, disclosures and communications in accordance with applicable law.

4.2.5. Requesting a Financial Product or Service. Each end user shall have expressly requested a financial product or service.

4.3. All Consents Clear and Conspicuous. Each such consent shall be “clear and conspicuous” as that term is interpreted under applicable laws, regulations, regulatory guidance and industry best practices.

4.4. Affirmative Consent. Each such consent shall have been obtained in an affirmative manner and requiring an affirmative action to be taken on the part of the end-user (eg. affirmative consent expressed by the consumer clicking an “I agree” checkbox or a “Submit” button).

4.5. Recordkeeping. PUBLISHER COVENANTS, REPRESENTS AND WARRANTS TO COMPANY AND COMPANY’S ADVERTISER CLIENTS THAT IT WILL USE RECORD KEEPING SYSTEMS THAT CAN ESTABLISH THAT THE REQUIRED CONSENTS FOR END USERS CAN BE EVIDENCED UNDER APPLICABLE LAWS. PUBLISHER WILL MAINTAIN SUCH RECORDS, AND MAKE SUCH RECORDS AVAILABLE TO COMPANY UPON REQUEST, FOR NO LESS THAN FIVE (5) YEARS FROM THE DATE OF THE COLLECTION OR THE APPLICABLE STATUTE OF LIMITATIONS PERIOD, WHICHEVER IS LONGER. PUBLISHER ACKNOWLEDGES AND AGREES THAT (A) IT MAINTAINS SUCH RECORDS OF CONSENTS ON BEHALF OF COMPANY AND (B) TO THE EXTENT ITS SUBCONTRACTORS OR SERVICE PROVIDERS MAINTAIN SUCH RECORDS, SUCH RECORDS ARE LIKEWISE MAINTAINED ON BEHALF OF COMPANY. PUBLISHER AGREES TO INDEMNIFY AND HOLD COMPANY AND ITS ADVERTISER CLIENTS HARMLESS FROM ITS FAILURE TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION 4. THE FOREGOING INDEMNIFICATION OBLIGATION IS NOT SUBJECT TO ANY LIMITATION OF LIABILITY PROVISIONS CONTAINED IN THE PRINCIPAL AGREEMENT.

4.6. Subcontractors. Publisher acknowledges that the requirements of this Section 4 apply to any subcontractors who generate Leads on Publisher’s behalf and that Publisher is fully responsible for such subcontractors’ failure to comply with the requirements herein.

5. DATA PRIVACY.

5.1. Certain Definitions. As used in this Addendum:

1. “Controller” means the party that, alone or jointly with others, determines the Purposes and means of the Processing of Personal Information.
2. “Data Breach” means any security incident if there is a reason to believe Personal Information contained in Lead Data has been or may have been accessed by or disclosed to an unauthorized party.
3. “Personal Information” means any information that can be used to directly or indirectly identify an individual consumer, including, but not limited to: (a) a first name and last name; (b) a home or other physical address, including street name and name of city or town; (c) an email address or other online contact information; (d) a telephone number; (e) a social security number; (f) a driver’s licenses or other government-issued identification numbers; (g) a financial institution account number; (h) credit or debit card information; (i) precise geolocation data of an individual or mobile device, including but not limited to GPS-based, WiFi-based, or cell-based location information; (j) an authentication credential, such as a username and password; (k) information about a consumer that would fall within the definition of “nonpublic personal information” under the Gramm-Leach-Bliley Act were it provided by the consumer to a financial institution; and (l) only with regard to California residents, any information about a California consumer that falls within the definition of “personal information” under the California Consumer Privacy Act.
4. “Processing” means any operation or set of operations which is performed on Personal Information, whether or not by automated means, and which includes the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing, Processes, Processed or other derivatives as used herein, will have the same meaning.
5. “Sensitive Personal Information” means the following information from or about an individual consumer: (a) a social security number; (b) financial institution account number; (c) credit or debit card information; (d) taxpayer identification number; (e) passport number; (f) driver’s license number or other state-issued identification number; (g) date of birth (other than just year); and (h) any other information by which a consumer’s financial account can be accessed, or by which a consumer might be charged for goods or services, including through third parties such as telecommunications carriers.

5.2. Purposes. Processing of Personal Information under this Addendum by the Parties is for the limited purposes described below (together “Purposes”).

5.2.1. Sensitive Personal Information. Processing of Sensitive Personal Information under this Addendum by the Parties is for the limited purposes of providing the consumer with the financial products or services they requested, including by (a) identifying providers of consumer financial products or services that can respond to the consumer’s expression of interest, (b) allowing such providers to choose whether to buy the corresponding Lead and (c) responding to the consumer’s expression of interest.

5.2.2 Other Personal Information. Processing of other Personal Information under this Addendum by the Parties is for the limited purposes of (a) the purposes identified in the previous subsection, (b) identifying other consumer financial products or service that might be of interest to the consumer and marketing such products or services to the consumer, (c) using such Personal Information as permitted under applicable law and/or the consents given by the consumer, (d) such other purposes described herein or in the Principal Agreement (including any applicable IO), and (e) to support the lawful, proper and legitimate use of the services offered by the Parties.

5.3. Roles.

5.3.1 Unsold Leads. With regard to Personal Information contained in Unsold Leads, Publisher is the Controller of such information and Company merely Processes such information on Publisher’s behalf as its service provider.

5.3.2 Sold Leads. With regard to Sensitive Personal Information contained in Sold Leads, Publisher is the Controller of such information and Company merely Processes such information on Publisher’s behalf as its service provider. With regard to the other Personal Information contained in Sold Leads, Publisher acts solely as the Controller of such information and Company may act as either a Controller or Processor of such information. Further, Company’s advertiser clients that access or receive Personal Information through the Marketplace may act as either a Controller or Processor of such information in line with their rights and obligations under their agreement with Company.

5.4. Details of Processing.

5.4.1 Nature and Purposes. The Parties may Process Personal Information contained in Lead Data for the Purposes, or, where applicable, as further instructed by the end-user.

5.4.2 Duration of Processing. The Parties will Process Personal Information contained in Lead Data during the term of the applicable IO, but will abide by the terms of this Addendum for the duration of any Processing if in excess of that term.

5.4.3 Types of Personal Information. Publisher may submit Leads to the Marketplace containing the following types of Personal Information about the end-user that will be Processed by Company: (a) name and contact information (eg. email, phone number, and address), (b) information about the financial product or service they are seeking (eg. loan amount), (c) personal financial information (eg. income and existing debt), (d) employment information, (e) personal identifiers (eg. social security number and identification number), (f) banking information, and (g) other information requested by the providers of the financial products or services sought by the consumer so those providers can choose whether to respond to the consumers expression of interest.

5.5. Privacy Policies. Each website from which Leads are generated must publish and maintain a privacy policy that (a) describes the website’s practices pertaining to the collection of Personal Information and the use or distribution of such information, (b) notifies the consumer that their Personal Information could be shared with and Processed by third parties as contemplated herein, and (c) is otherwise in compliance with all applicable laws given the uses of Personal Information contemplated herein.

6. DATA SECURITY

6.1. Data Safeguards. Publisher covenants, represents and warrants that it has implemented and will maintain appropriate administrative, physical and technical safeguards to protect Personal Information contained in Lead Data. Such safeguards must be part of a written information security program against which they can be audited. In assessing the appropriate level of security, Publisher shall take account in particular of the risks that are presented by the acquisition and use of the data and from a possible Data Breach.

6.2. Specific Minimum Safeguards. At a minimum, Publisher’s safeguards for the protection of Personal Information contained in Lead Data must include: (a) limiting access of such Personal Information to those who have a need to know or otherwise access such information; (b) implementing authentication and access controls within media, applications, operating systems and equipment; (c) implementing appropriate physical controls to prevent unauthorized physical access to Personal Information; (d) implementing and following procedures to add new users, modify access levels of existing users, and removal of users who no longer need access consistent with the principle of “least privilege”; (e) encrypting of such Personal Information both when transmitted and when stored or “at rest”; (f) performing a network-level vulnerability assessment based on recognized industry best practice no less than annually; (g) setting forth procedures to detect actual and attempted attacks into systems and proactively testing them; (h) providing appropriate privacy and information security training to its relevant employees; and (i) maintaining a documented Data Breach response plan.

6.3. Data Breach Procedures. PPublisher will notify Company of a Data Breach as soon as practicable, but no later than forty-eight (48) hours after Publisher becomes aware of it, by e-mailing Company at compliance@itmedia.xyz, with a copy by e-mail to Publisher’s primary business contact within Company.

6.4. Subcontractors. Publisher acknowledges that the requirements of this Section 6 apply to any subcontractors who generate Leads on Publisher’s behalf and that Publisher is fully responsible for its subcontractors failure to comply with the requirements herein. Further, Publisher must have entered into a written agreement with any such subcontractors pursuant to which they agree to establish and maintain a data security program in compliance with applicable law and indemnify Publisher for their violation of applicable law.

7. STATUS OF PUBLISHER. Publisher covenants, represents and warrants to Company that (a) it maintains any required licenses to submit Leads to the Marketplace and otherwise perform its obligations hereunder, (b) it is not a “Consumer Reporting Agency” as that term is defined under the Fair Credit Reporting Act and its implementing regulations, and (c) any Leads, Lead Data or other Personal Information submitted to the Marketplace do not fall within the definition of a “Consumer Report” as that term is defined under the Fair Credit Reporting Act and its implementing regulations.

This Email Marketing Addendum (“Addendum”) applies to any Publisher that sends marketing emails referencing or advertising Company or Company’s advertiser clients (or either of their brands or websites) pursuant to its performance under the Publisher Terms to which this Addendum is attached (“Principal Agreement”). In case of a conflict between this Addendum and the Principal Agreement, this Addendum will prevail. Capitalized terms not defined within this Addendum shall have the meaning given in the Principal Agreement.

1. EMAIL MARKETING CAMPAIGNS

1.1. Campaigns. Publisher may only conduct email marketing campaigns (“Campaigns”) as part of its performance under the Principal Agreement if authorized by a duly executed IO.

1.2. Direct Access. Publisher shall only execute Campaigns as part of its participation in the Marketplace using email data to which Publisher has Direct Access. “Direct Access” means data that Publisher owns or has been granted custody of under a list management agreement (or similar) and includes prompt access to all properly obtained consents, records and unsubscribe requests for all managed email addresses. Publisher represents and warrants that it has the ability to manage directly all unsubscribe requests.

1.3. Frequency. Publisher shall not email more than one Marketplace offer to each email address within Publisher’s then current managed mailing list every three (3) calendar days, unless otherwise approved in writing by Company. Further, in no event shall the frequency of such emails violate applicable law.

2. CONSUMER CONSENT

2.1. Email Consent. All email addresses used for Campaigns must have been collected by Publisher (or its licensor) with applicable express written consent to receive marketing email (“Consent”) and such Consent shall not have been withdrawn. If a complaint is made to Company contending that an email address owner has not given its Consent or has withdrawn its Consent, Publisher will provide, in a timely manner, relevant information to Company, as reasonably requested, to prove that the complaining owner’s Consent was obtained and not withdrawn. Publisher agrees that it shall not send any emails to email recipients whose email address was obtained through any form of incentivization.

2.2. Privacy Policies. Publisher represents and warrants that prior to, or at the time email addresses were collected, consumers were notified of the applicable website’s privacy policy and practices pertaining to the collection of email addresses and use or distribution of consumer information.

3. EMAIL CREATIVE. Unless otherwise approved in writing by Company (including through an IO), the following requirements apply to the content of any emails sent pursuant to this Addendum (“Email Creative”): (a) only Email Creative supplied by Company on the Publisher Panel may be used, (b) Email Creative may not be modified, altered or added to in any way, (c) emails shall use only from lines, and subject lines provided or approved by Company in writing and (d) Publisher shall not remove or alter subject lines or from lines provided by Company. If Company provides written approval for Publisher to use its own Email Creative or modify Email Creative provided by Company, each such piece of Email Creative must be approved by Company in writing (including via email).

4. UNSUBSCRIBE LINKS. Each Email Creative supplied by Company contains an unsubscribe link. Only Company’s unsubscribe link shall be used. Unsubscribe links shall not be modified. Only one unsubscribe link may appear per email. No other unsubscribe links may be added to an email. The “rewriting” a supplied unsubscribe link by Publisher, an email service provider (ESP), or any other third party is prohibited.

5. SUPPRESSION LISTS.

6.1. Company will make available to Publisher the suppression list consisting of email addresses of consumers who have requested to be unsubscribed from emails from Company or Company’s Clients (“Suppression List”).

6.2. Publisher covenants and warrants that it will not send any e-mail subject to this Addendum to any of the e-mail addresses set forth on the Suppression List.

6.3. Publisher shall use the most current Suppression List provided to obtain unsubscribe information and shall remove emails on the Suppression List prior to any email drop.

6.4. Regarding any Suppression List generated in connection with, or provided through the Marketplace, Publisher shall: (a) use such Suppression List, and the individual customer records contained, solely for the suppression purposes set forth, even after any termination of this Agreement; (b) not use the Suppression List for e-mail, or provide the Suppression List to any third party for the purposes, and not send, or cause to be sent, any commercial e-mail to an e-mail address, telephone number, or domain appearing on any Suppression List; (c) hold any Suppression List provided by Company in trust and confidence and use same solely for the suppression purposes set forth herein; (d) not retain a copy of any Suppression List provided by Company following termination of this Agreement, unless such Suppression List is actively being used by Publisher; and (e) otherwise treat the Suppression list as Confidential Information under the Agreement.

6.5 If relevant (eg. if Company agrees in writing for Publisher to use its own unsubscribed links), Publisher shall upload its own list of suppressed e-mail addresses and telephone numbers to the area of the Publisher Panel (“Suppression List Upload Section”), if such a Suppression List Upload Section is provided by Company. If the Suppression List Upload Section is provided by Company, and no such e-mail addresses or telephone numbers are supplied by Publisher, Company may conclude that no such addresses exist. Publisher further agrees and acknowledges that: (a) Publisher has downloaded and removed the domains on the Federal Communications Commissions (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all current data used in any commercial e-mail marketing campaigns with this Agreement; and (b) all new data that Publisher acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained will be removed before sending any commercial e-mail marketing campaigns under this Agreement. Publisher shall maintain electronic or tangible records evidencing the removal of any email addresses or telephone number from Publisher’s lists for verification by Company as required or requested.

7. UNSUBSCRIBE REQUESTS. If relevant, Publisher shall promptly honor all consumer requests to unsubscribe from its list(s). All e-mail addresses collected must be from sites that honor consumer requests in a timely manner and in accordance with applicable laws. Publisher agrees to scrub its address list against its most recent list of consumers who have requested to be removed from e-mail solicitation lists prior to sending marketing emails. Publisher further warrants that it will not send email to, or sell, lease, exchange, or otherwise transfer or release the email address of any consumer known to have made a request to be unsubscribed from Publisher’s list or any lists under management of Publisher.

8. ADDITIONAL LEGAL COMPLIANCE.

8.1. Publisher covenants, represents and warrants that it will comply with all applicable laws, rules and regulations including but not limited to, CAN-SPAM, California Business & Professions Code Section 17529.1 et seq., the Federal Trade Commission Act, and any other applicable laws, rules and regulations. This also includes all state laws governing unsolicited commercial emails.

8.2. Publisher is prohibited from using “subject” lines that contain “Re:…”, “Fwd:…” or other similar short-hands that obscure the email as an original advertising communication from the Publisher.

8.3. Publisher shall not send email messages from accounts obtained using scripts or other automated means of registering for multiple email accounts.

8.4. Publisher shall promptly stop sending any email campaigns upon written notice from Company.

8.5. Publisher shall also: (a) not falsify e-mail header and transmission information (including, without limitation, source, destination and routing information); (b) not use any "subject" or "from" line that is materially false or misleading; and (c) not seek or obtain unauthorized access to computers to send any and all commercial e-mail.

9. COMPLAINTS. If you receive a complaint regarding an email you sent under this Addendum from a consumer, regulatory authority, or any other source, you must notify Company within 24 hours after receipt and include a copy and the following information: (a) the website or other means by which the recipient of email in question agreed to receive such email messages; (b) the date the recipient provided such consent (and the time if available); and (c) the IP address from which the recipient signed up and provided said consent. You acknowledge that it is Company's policy to comply with investigations under the CAN-SPAM Act and other applicable laws, rules and regulations. Publisher is solely responsible for all consumer complaints relating to e-mail campaigns conducted by or on behalf of Publisher. Publisher shall respond to all consumer complaints within forty-eight (48) hours of receipt and notify Company of all consumer complaints as described above.