Last updated: June 8, 2022
These Publisher Terms (“Terms”) set forth the terms and conditions pursuant to which the person or entity agreeing to these Terms (“Publisher”) may provide certain types of Traffic (defined below) to one or more of the following companies through their proprietary online advertising marketplaces (“Marketplace”):
- Great LLC d/b/a ITMedia, a Nevada limited liability company
- HSH.COM LLC, a Nevada limited liability company, together with its subsidiary QuinStreet Media, Inc., or
- any other company with whom Publisher enters into an insertion order that incorporates these Terms 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”. Company and Publisher are together referred to herein as the “Parties”, or each individually as a “Party”.
These Terms are not effective until Publisher and Company execute one or more insertion orders describing (i) which party Publisher is sending Traffic to, (ii) the type of Traffic, (iii) pricing, and (iv) any other relevant details (“IO”). Any services Publisher performs for Company, whether or not explicitly identified herein or within any IO, is subject to these Terms. Where the terms of these Terms and an IO conflict, the terms of the IO shall prevail to the minimum extent necessary to resolve the conflict.
Company may modify these Terms by posting an updated version on the publisher panel located at https://itmedia.xyz/publishers, or such other address as specified by Company in writing (“Publisher Panel”) — with such modification 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) Publishers provides in the Publisher Panel or the most recent IO is reasonable notice under the previous sentence.
1. CERTAIN DEFINITIONS.
1.1. “EOI Data” means information associated with an EOI that Publisher provides to Company.
1.2. “Expression of Interest” or “EOI” means a request from an individual for information about financial products or services.
1.3. “Intellectual Property” means all intellectual property rights, including Marks, trade dress, domain names, websites, copyrights, patents, trade secrets, software, know-how and proprietary technology
1.4. “Marks” mean any trade names, logos, trademarks, service marks, or international equivalents of the foregoing, whether or not registered.
1.5. “Publisher Creative” means websites, emails or other creative used by Publisher to generate Traffic.
2. PUBLISHER OBLIGATIONS.
2.1. Traffic. Publisher shall provide Traffic to Company as set forth in more detail in an IO. “Traffic” means EOI Data, click, impression, sale or any other action to be delivered by Publisher to Company as specified in an IO.
2.3. 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, and (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.
2.4. Creative Restrictions. Publisher Creative 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.
2.5. 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 such Subcontractors is approved by Company in writing (including via email or 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.
2.6. 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.
2.7. Approval of Materials. Prior to generating any Traffic hereunder, Publisher will obtain Company’s approval of all Publisher Creative used to generate traffic hereunder. In the event Company requires edits or changes to Publisher Creative prior to the start of Traffic generation hereunder, Publisher shall make commercially reasonable efforts to implement such changes or edits. In the event Publisher is unable to make requested changes or edits, either Party shall have the right to immediately terminate these Terms. In the event Company requires edits or changes to approved Publisher Creative 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 or else Company may immediately suspend or terminate this Agreement or any applicable IO. If Publisher materially modifies Publisher Creative, it shall obtain Company’s written approval prior to generating Traffic hereunder using such modified Publisher Creative.
3. DATA PRIVACY AND SECURITY.
3.1. Publisher. If Publisher provides EOI Data to Company or otherwise transfers any non-public personal information about consumers to Company, Publisher covenants, represents and warrants that it will comply with terms of the Data Privacy and Security Addendum attached hereto as Appendix 1. If Publisher provides any Sensitive Personal Information (as defined in Appendix 2 attached hereto), Publisher covenants, represents and warrants that it will comply with terms of the Sensitive Personal Information Addendum attached hereto as Appendix 2.
3.2. Company. Company covenants, represents and warrants that (a) its reception, processing and sharing of EOI Data will comply with all applicable data privacy and security laws and regulations, including, without limitation, the Federal Trade Commission’s Standards for Safeguarding Customer Information and (b) it has implemented and maintains reasonable administrative, physical and technical safeguards to protect EOI Data in compliance with all applicable data privacy and security laws and regulations.
4. EOI TRAFFIC. If Publisher provides EOI Data to Company, Publisher covenants, represents and warrants that it will comply with terms of the Expression of Interest (EOI) Traffic Addendum attached hereto as Appendix 3.
5. EMAIL TRAFFIC. If Publisher generates Traffic through email marketing, Publisher covenants, represents and warrants that it will comply with terms of the Email Marketing Addendum attached hereto as Appendix 4.
6. CREATIVE MATERIAL; INTELLECTUAL PROPERTY.
6.1. Company Creative. Company may provide Publisher with Company Creative that Publisher may use to generate traffic. “Company Creative” means any content, creative assets, advertising listings, forms, design, software or technology platforms, Company Marks and Company’s Advertiser’s Marks, together with any associated links and hyperlinks which direct Traffic, and any imbedded bots and tracking tools contained in any link. Publisher must promptly comply with all directions by Company to modify, alter, or otherwise adjust the placement, frequency, and/or other editorial decisions related to the Company Creative.
6.2. No Modification. Publisher may only the most recent version of the Company Creative posted by Company on the Publisher Panel. Unless approved in writing by Company, Publisher shall not alter, modify or otherwise change the Company Creative, including any links therein, in any manner. Company shall not be liable to Publisher for any failure by Publisher to use Company Creative in compliance with these Terms.
6.3. License. Company hereby grants Publisher a limited, fully paid, non-exclusive, non-transferable, non-sublicensable (except as otherwise provided herein) license during the term of the Agreement to use the Company Creative solely for the purposes contemplated by these Terms. Company may terminate this license in its sole discretion with notice to Publisher. Publisher must immediately remove Company Creative upon receiving notice from Company or upon the termination or expiration of these Terms or any Campaign
6.4. 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 Company Creative. All determinations made by Company for the Company Creative and Compensable Transactions shall be final and binding on Publisher.
6.5. Intellectual Property. Subject to the limited licenses granted in these Terms, each Party shall own and shall retain all right, title and interest in its Intellectual Property and Confidential Information (defined below). Except as provided in these Terms, 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.
6.6 Data Ownership. Unless otherwise set forth in an IO, Company will exclusively own all data collected or generated pursuant to these Terms, including EOI Data, performance data and the 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.
7.1. 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 under these Terms. Company shall compile, calculate, and make available to Publisher the data used by Company to determine fees due to Publisher (“Fee Data”).
7.2. Timing. Unless otherwise set forth on an IO, Company will pay Publisher on a net-30 basis following the end of each calendar month. Payments via wire transfer for amounts less than $1,000 will roll over to the next pay period. 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.
7.3. Earning Fees. Fees will not be “earned” until Company receives corresponding payment from Company Advertisers. If Publisher receives a payment for Traffic which is later returned or refunded to a Company Advertiser, 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.
7.4. 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 these Terms or that is otherwise illegal, deceptive or fraudulent as reasonably determined by Company. If Publisher fraudulently or unlawfully generates Traffic, as determined by Company in its sole reasonable discretion, Publisher will forfeit all unpaid Fees and these Terms will be immediately terminable by Company.
7.5. 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 will investigate and resolve any Commission Data-related questions or disputes in its sole reasonable discretion.
7.6 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.
7.7. Breach. Company may withhold payment under these Terms if it reasonably believes Publisher is in breach of a material term of these Terms and Company has provided notice of such breach to Publisher.
7.8. 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.
8. TERM AND TERMINATION
8.1. Term. The Term of these Terms commences on the effective date of the first IO and continues as long as an IO is in effect.
8.2. Termination. Unless otherwise set forth in an IO, either Party may terminate these Terms and any IOs then in effect upon three (3) business days written notice to the other Party. These Terms shall automatically terminate if Publisher does not generate any Traffic for six consecutive months.
8.3. 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.
8.4. Effect of Termination. Upon termination of these Terms 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
9. RESTRICTIVE COVENANTS.
9.1. Non-Solicitation of Employees. During the term of these Terms, 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 these Terms and for one (1) year thereafter, Publisher shall not knowingly, directly or indirectly, solicit, divert, or appropriate any Company Advertiser. The foregoing restriction shall not apply to such Company Advertisers with whom Publisher can demonstrate a previously existing business relationship.
9.3. Trademark and Keyword Bidding. Company maintains a list of banned keywords on the Publisher Panel. 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 these Terms. Company may modify this list from time to time in its sole discretion with notice to Publisher.
10. 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 these Terms 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 these Terms 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 these Terms or violation of any laws, rules, or regulations. If Company discovers any breach of these Terms or violation of any laws, rules, or regulations, then the audit shall be at the sole cost and expense of Publisher. Company expressly reserves the right to seed data to monitor Publisher’s compliance with these Terms and applicable laws, rules, and regulations
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 these Terms and to grant the rights and licenses hereunder, (b) the execution or electronic acceptance of these Terms 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 SERVICES PROVIDED 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.
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 THESE TERMS, 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 THESE TERMS SHALL NOT EXCEED THE AMOUNT PAYABLE TO PUBLISHER BY COMPANY UNDER THESE TERMS IN THE SIX (6) COMPLETED CALENDAR MONTHS PRECEDING THE CLAIM GIVING RISE TO ANY SUCH LIABILITY. COMPANY WILL HAVE NO LIABILITY TO PUBLISHER FOR MATERIAL THAT IS NOT PROVIDED OR APPROVED BY COMPANY, INCLUDING ALL COPIES, IMAGES, DOMAIN NAMES AND SEARCH TERMS USED BY PUBLISHER.
14.1. Definition. As used herein, “Confidential Information” shall mean: (a) the terms of these Terms, (b) any pricing, technical, marketing, financial, employee, planning and other confidential or proprietary information, including customer and supplier lists, and (c) 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. Confidential Information does not include information that: (A) is or has been independently developed by the receiving Party without access to the other Party’s Confidential Information; (B) is or has become generally known to the public through no breach of these Terms by the receiving Party; (C) has been rightfully received from a third party authorized to make such disclosure; (D) has been approved in writing for release in writing by the disclosing Party; or (E) is required to be disclosed by a competent legal or governmental authority; provided that the recipient notifies the other Party of the required disclosure 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.
14.2. Use and Disclosure. Neither Party will use, exploit or disclose any Confidential Information of the other Party except for purposes of carrying out the business transaction between the Parties contemplated by these Terms, and for no other purpose whatsoever.
14.3. Destruction and Return of Confidential Information. Upon the earlier to occur of termination of these Terms or the request of the disclosing Party, the receiving Party shall destroy or return all of the disclosing Party’s Confidential Information to the disclosing Party and if so requested by the disclosing Party, deliver to the disclosing Party a certificate executed by one of its duly authorized officers confirming compliance with the return or destruction obligation.
15. INDEMNIFICATION. Publisher (in this section, the “Indemnitor”) shall indemnify, defend, and hold harmless Company, its parents, clients, network participants, Publishers and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys (collectively, the “Indemnitees”) against all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs, or settlement costs) arising from or related to: (a) Indemnitor’s performance hereunder; (b) any breach or alleged breach of these Terms or any representation or warranty contained by Indemnitor, its Subcontractors, or each of their respective officers, directors, partners, corporate Publishers members, managers, employees, agents and attorneys (in this section, the “Publishers”); or (c) any violation or alleged violation of any law, rule, or regulation by Indemnitor, its Subcontractors, or each of their Publishers. Indemnitee shall promptly notify the Indemnitor in writing of any such claim (although failure to provide such notice shall not relieve the Indemnitor of its liability or obligation). Indemnitor shall have reasonable control of the defense and settlement of any such claim and the Indemnitee shall cooperate with all reasonable requests of the Indemnitor (at the Indemnitor’s expense) in defending or settling a claim. Subject to the foregoing clause, the Indemnitee may join in the defense or settlement of any such claim with counsel of its choice, at its own expense. All costs and expenses incurred by the Indemnitor in providing the foregoing indemnity shall be paid by the Indemnitor.
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 complies with, the Mortgage Acts and Practices Advertising Rule (Regulation N). For the avoidance of doubt, this Section 16.2 only applies to Publisher if it only sends mortgage Traffic to Company.
17. GENERAL PROVISIONS.
17.1. Status of the Parties; Publicity. The Parties’ relationship is one of independent contractors and nothing in these Terms are intended to or will create any form of partnership, joint venture, agency, or employment relationship between the Parties. 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 these Terms 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. These Terms 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. The arbitration must be conducted in Nevada and 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. Any claim under these Terms, other than for indemnity and defense must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be forever barred. To the extent permitted by law, Publisher agrees that Publisher will not bring, join or participate in any class action lawsuit on any claim, dispute or controversy that Publisher may have against Company and its employees, officers, directors, members, representatives and assigns. Publisher agrees to the entry of injunctive relief to stop such a lawsuit or to remove Publisher as a participant. Publisher agrees to pay the attorney's fees and court costs that Company incurs in seeking such relief.
17.6. Assignment. Publisher may not assign, transfer, or delegate any of its rights or obligations under these Terms without the prior written consent of Company, and any attempts to do so shall be null and void; provided, however, that Publisher may assign these Terms 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 these Terms upon prior written notice to Publisher. Subject to the foregoing limitations, the Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
17.7. Entire Agreement. These Terms 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 the terms of these Terms by posting an updated version on the Publisher Panel, with such modification effective the sooner of (a) Publisher electronically accepting the updated version on the Site or (b) thirty (30) days after Company provides reasonable notice to Publisher.
17.9. Non-Waiver; Severability. No waiver of any breach of any provision of these Terms 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 these Terms are 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 these Terms will remain in full force and effect.
17.10. Notice. Any notice, approval or other communication to Company hereunder must be submitted by email to (a) email@example.com 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.
Data Privacy and Security Addendum
This Data Privacy and Security Addendum (“Addendum”) applies to any Publisher that provides Personal Information (defined below) to Company 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 Terms. In case of a conflict between this Addendum and the Principal Terms, this Addendum will govern.
1. CERTAIN DEFINITIONS
1.1. “Consumer Data” means PI provided by Publisher to Company.
1.2. “Data Breach” means any security incident if there is a reason to believe Consumer Data has been or may have been accessed by or disclosed to an unauthorized party.
1.3. “Personal Information” or “PI” means information from or about 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) any information that falls within the definition of SPI below; and (l) information about a consumer that would fall within the definition of “nonpublic personal information” under the Gramm-Leach-Bliley Act (GLBA, 15 USC §§6801- 6827) were it provided by the consumer to a financial institution.
3. CONSENT AND DISCLOSURES.
3.1. Approved Consents and Disclosures. Prior to the delivery of any Consumer Data to Company, Publisher must make all of its consents and disclosures on the websites it collects Consumer Data on available to Company for Company to approve. Company’s approval shall not be unreasonably withheld or delayed. Publisher shall timely implement any reasonable edits or modifications to the consents and disclosures requested by Company.
3.2. Modification to Approved Disclosures. Publisher must submit to Company for approval any proposed material modifications to any previously approved disclosures no later than three (3) business days prior to the proposed launch of such modifications. Publisher shall timely implement any reasonable edits or modifications to the consents or disclosures requested by Company.
3.2. Required Consents. Publisher shall ensure that each end user has given their prior express written consent to each of the following, and any other consent that may be required by applicable law:
3.2.1. Consent to Data Sharing. Each end user shall have expressly consented to have their PI shared with third-party marketing partners of Publisher and for such third-party marketing partners Company to further share such Consumer Data for the purpose of identifying products or services that may be available to the end user. Publisher acknowledges that Company passes Consumer Data on to both (a) providers of the financial products and services requested by the consumer, and (b) advertising networks, brokers or agents of record that, in turn, pass the Consumer Data on to providers of the financial products and services requested by the consumer.
3.2.2. Consent to be Contacted. Each end user shall have provided their prior express written consent as required by all applicable laws, rules or regulations so that Company and Company’s clients and third-party marketing partners may (a) call or send a text or SMS to any telephone number contained within the Consumer 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.
3.2.3. FCRA Consent. Each end user shall have provided their written instruction as required under the Fair Credit Reporting Act and any other applicable laws for lenders in Company’s network to obtain the end-user’s consumer credit report from a credit reporting agency.
3.2.4. E-Consent. Each end user shall have expressly consented to receive, use and accept electronic signatures, records, disclosures and communications in accordance with applicable law.
3.2.5. Requesting a Financial Product or Service. Each end user shall have expressly requested a financial product or service.
3.3. All Consents Clear and Conspicuous. Each consent covered under this Addendum shall be “clear and conspicuous” as that term is interpreted under applicable laws, regulations, regulatory guidance and industry best practices.
3.4. Affirmative Consent. Publisher shall obtain an end users required consents in an affirmative manner and requiring an affirmative action to be taken on the part of the consumer (eg. affirmative consent expressed by the consumer clicking an “I agree” or a “Submit” button).
3.5. Recordkeeping. Publisher shall use record keeping systems that can establish that the consents for end users can be evidenced under applicable laws. Unless another time frame is specified in an IO, 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 it maintains records of consents on behalf of Company as its service provider.
5. DATA SECURITY
5.1. Data Safeguards. Publisher covenants, represents and warrants that it has implemented appropriate administrative, physical and technical safeguards to protect Consumer 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 for Consumer Data, 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.
5.2. Specific Minimum Safeguards. At a minimum, Publisher’s safeguards for the protection of Consumer Data must include: (a) limiting access of Consumer Data to employees who have a need to know or otherwise access Consumer Data to enable Publisher to perform its obligations pursuant to the Principal Terms; (b) implementing authentication and access controls within media, applications, operating systems and equipment; (c) implementing appropriate physical controls to prevent unauthorized physical access to Consumer Data; (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 PI stored by Publisher; (f) encrypting PI transmitted over public or wireless networks; (g) performing a network-level vulnerability assessment based on recognized industry best practice no less than annually; (h) setting forth procedures to detect actual and attempted attacks into systems and proactively testing them; (i) providing appropriate privacy and information security training to Publisher’s relevant employees; (j) maintaining a documented incident response plan, (k) only receiving or transferring PI using appropriate encrypted protocols (e.g., SSL).
6. DATA BREACH PROCEDURES. Publisher 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 with a read receipt at firstname.lastname@example.org, with a copy by e-mail to Publisher’s primary business contact within Company. Publisher shall reimburse Company for actual reasonable costs incurred by Company in responding to, and mitigating damages caused by, any Data Breach, including all costs of notice and/or remediation.
7. SUBCONTRACTORS. Publisher shall not transfer any Consumer Data generated by a Subcontractor unless Publisher has entered into a written agreement with that Subcontractor pursuant to which the Subcontractor agrees to (a) establish and maintain a data security program at least as stringent as that required under Sections 5 and 6 of this Addendum, and (b) comply with requirements for consents, disclosures and privacy policies reasonably similar to those required under Sections 3 and 4 of this Addendum.
Sensitive Personal Information Addendum
(NOT APPLICABLE TO MORTGAGE TRAFFIC)
This Sensitive Personal Information Addendum (“Addendum”) applies to any Publisher that provides Sensitive Personal Information (defined below) to Company pursuant to the Publisher Terms to which this Addendum is attached (“Principal Terms”). Capitalized terms not defined herein have the meanings given to them in the Principal Terms (including all appendices thereto). In case of a conflict between this Addendum and the Principal Terms, this Addendum will govern to the minimum stent necessary to resolve the conflict.
1. CERTAIN DEFINITIONS
1.1. “Sensitive Personal Information” or “SPI” 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 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.
2. REQUIREMENTS FOR SPI. If Publisher provides any SPI to Company, then Publisher covenants, represents and warrants that it will comply with the following requirements.
2.1. Data Privacy and Security. Publisher shall (a) not log, store or retain SPI and must delete all such SPI from its systems following delivery to Company (except as required to comply with applicable law), (b) maintain SSL certificates so that new valid certificates are installed before old ones expire, (c) regularly test the effectiveness of the key safeguards protecting SPI, (d) not use any SPI in a development or test environment, and (e) only use or share SPI as necessary for the end user to obtain the financial product or service sought by the end user (except as required to comply with applicable law).
2.2. Insurance. Publisher shall maintain (a) general liability, (b) professional liability / E&O and (c) cyber-liability / data-breach insurance policies, each in an amount not less than $1,000,000 per occurrence and $1,000,000 in the aggregate.
Expression of Interest (EOI) Traffic Addendum
This Expression of Interest (EOI) Traffic Addendum (“Addendum”) applies to any Publisher that provides EOI Traffic to Company 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 Terms. In case of a conflict between this Addendum and the Principal Terms, this Addendum will govern to the minimum extent necessary to resolve the conflict.
1. EOI DATA. Publisher covenants, represents and warrants that (a) Publisher will use commercially reasonable efforts to only submit EOI Data to Company that was 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 EOI Data was submitted directly by the end user associated with the EOI Data and not by a third party on the end user’s behalf, (c) each EOI represents a request by the end-user for a financial product or service, and (d) all EOI Data is generated within the United States. Unless otherwise approved in writing by Company, Publisher may not resell, redistribute or remarket to any EOI Data transferred to Company under the Principal Terms.
2. EOI SUBCONTRACTORS. Unless otherwise agreed to by Company in writing (including via an IO), Publisher is only authorized to use Subcontractors to generate EOI Data if (a) all EOI Data provided to Company is entered by end-users directly into forms hosted by Publisher, and (b) the Subcontractor does not have access to the EOI Data or the consents associated therewith. Notwithstanding anything to the contrary herein, upon request, Publisher shall provide to Company the URLs of all Subcontractors that generate EOI Data.
3. EOI SOURCE. Unless otherwise approved by Company in writing (including via email or an IO), Publisher shall pass to Company along with each item of EOI Data a source ID that permits Company to identify EOI Data according to the source from which the end user associated with the EOI Data was referred to the relevant Publisher Website. This source ID need not disclose the identity of the source.
4. APPROVAL OF MATERIALS. Unless otherwise approved by Company in writing (including via email or an IO), Publisher must obtain Company’s Approval of each Publisher Website from which Publisher generates EOI Data. In the event Company requires edits or changes to a Publisher Website prior to the start of Traffic generation hereunder, Publisher shall make commercially reasonable efforts to implement such changes or edits. In the event Publisher is unable to make requested changes or edits, either Party shall have the right to immediately terminate the relevant IO. In the event Company requires edits or changes to an approved Publisher Website 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 Company’s notification. 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.
5. VALID / INVALID EOI DATA. Company will use commercially reasonable care in determining whether EOI Data is Valid or Invalid. EOI Data shall be deemed a “Valid” if the EOI Data satisfies each of the following requirements, as applicable: (a) complies with all posting instructions as provided by Company; (b) originates from an end-user that meets all applicable filters or specifications (c) is not a duplicate, inaccurate or incomplete; (d) does not originate from any fraudulent, misleading, incentivized or automated activity; (e) does not contain a clearly false information (e.g., King Kong) or a telephone number or an email address which is invalid; (f) does not exceed any predetermined caps; and (g) meets all other requirements under this Agreement and any IO. “Invalid” EOI Data is any EOI Data that is not Valid. Company’s reasonable determination of whether a EOI Data is Valid shall be final and binding.
6. LICENSING. If relevant for the type of EOI Data that Publisher is generating, Publisher covenants, represents and warrants that it maintains all reasonably necessary licenses to generate the type of EOI Data it generates hereunder.
Email Marketing Addendum
This Publisher Terms Email Marketing Addendum (“Addendum”) applies to any Publisher that sends emails pursuant to its performance under the Publisher Terms to which this Addendum is attached (“Principal Terms”). In case of a conflict between this Addendum and the Principal Terms, this Addendum will prevail. Capitalized terms not defined within this Addendum shall have the meaning given in the Principal Terms.
1. EMAIL MARKETING CAMPAIGNS
1.1. Campaigns. Publisher may only conduct email marketing campaigns (“Campaigns”) as part of its participation in the Marketplace if authorized by a properly 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. Timing. Publisher shall not email more than one Marketplace offer to each email address within Publisher’s then current managed mailing list every seven (7) calendar days, unless otherwise approved in writing by Publisher.
2. CONSUMER CONSENT.
2.1. Email Consent. All email addresses used for Campaigns must have been collected by Publisher with the applicable express written 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.
3. EMAIL CREATIVE.
3.1. Only Email Creative supplied by Company on the Publisher panel on the Site may be used.
3.2. Email Creative may not be modified, altered or added to in any way.
3.3. Emails shall use only from lines, and subject lines provided or approved by Company in writing.
3.4. Publisher shall not remove or alter subject lines or from lines provided by Company.
4. UNSUBSCRIBE LINKS
4.1. Each approved Email Creative supplied by us contains an unsubscribe link. Only our unsubscribe link shall be used with our Email Creative. Our unsubscribe link may not be modified.
4.2. Only one unsubscribe link may appear per email. No other unsubscribe links may be added to an email.
4.3. The “rewriting” of our supplied unsubscribe link by Publisher, an email service provider (ESP), or any other third party is prohibited.
5. PRE-DROP APPROVAL. Prior to any email drop, Publisher must send a test email to Publishers@itmedia.xyz with the subject line “TEST EMAIL FROM AIDXXX” (where XXXX is the Publisher ID number – e.g., AID1234). Upon receipt of test email, Company will evaluate the content of the test email and will reply to the email with a response of “APPROVED” or “NOT APPROVED” in the body of the email. If Publisher receives an APPROVED response, the Publisher may commence the email drop. If Publisher receives a NOT APPROVED response, the Publisher is prohibited from sending any email and we encourage the Publisher to contact their Publisher manager to resolve the issue.
6. SUPPRESSION LISTS.
6.1. Company shall 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 warrants that it will not send any e-mail pursuant to the Agreement or on behalf of Company or its Clients 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 within twenty-four (24) hours 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 these Terms; (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 these Terms, 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, Publisher shall upload its own list of suppressed e-mail addresses and telephone numbers to the area of the Site (“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 these Terms; 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 these Terms. 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 shall 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 immediately 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 materially false or misleading; (c) not seek or obtain unauthorized access to computers to send any and all commercial e-mail; (d) include within all commercial e-mail sent: (i) a valid street address for both Publisher and/or any other relevant party, excluding Company; (ii) a clear and conspicuous opt-out notice and functional opt-out mechanism provided solely by Company that must remain active for at least thirty (30) days from the date the subject e-mail was transmitted; (iii) clear and conspicuous language in the body of the email identifying the message as an advertisement or solicitation by either header or footer information which states the message is an advertisement or solicitation; and (iv) process unsubscribe requests within three (3) days of receipt of same; (e) comply with all legal obligations and best practices regarding unsubscribing consumers from the Publisher’s e-mail mailing lists; and (f) at least once each week or prior to any email drop, scrub the Publisher email database against the relevant suppression lists provided by Company.
9. COMPLAINTS. If you receive a complaint regarding an email you sent under these Terms 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 the I.P. 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.