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Terms and Conditions

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Digital Media Solutions Terms *
DMS Publisher Standard Terms & Conditions

THESE PUBLISHER STANDARD TERMS AND CONDITIONS, TOGETHER WITH THE CAMPAIGN DESCRIPTIONS AND ANY EXHIBITS OR ATTACHMENTS HERETO (COLLECTIVELY, THE "AGREEMENT"), SET FORTH THE ENTIRE AGREEMENT BETWEEN THE ENTITY ENTERING INTO THIS AGREEMENT (“PUBLISHER”) AND DIGTIAL MEDIA SOLUTIONS, LLC, WITH A PRINCIPAL ADDRESS AT 4800 140TH AVE. N., STE. 101, CLEARWATER, FL 33762 ("DMS"). THIS AGREEMENT SUPERSEDES ANY AND ALL OTHER AGREEMENTS GOVERNING THE SAME SUBJECT MATTER BETWEEN DMS AND THE PUBLISHER.  Publisher and DMS are each referred to herein as a "Party" and collectively referred to as the "Parties."

1. Services. Publisher has experience in providing certain online marketing, data processing and lead generation services, including the publication of content via electronic mail, banner, display, and pop-up pay per view advertisements ("Ad(s)"). In connection with this Agreement, the Ads shall be provided by either Publisher or DMS.  The Ads shall be distributed by Publisher in accordance with the procedures and specifications set forth in this Agreement and the “Campaign Descriptions” made available by and through DMS's portal (network.w4.com) (“Portal”), which Campaign Descriptions shall be entered into from time to time and incorporated into this Agreement. Publisher shall distribute the Ads subject to the restrictions contained in this Agreement for the purposes of generating: (a) certain leads containing all of the “Required Lead Data Fields,” as set forth in the Campaign Descriptions (“Leads”); and/or (b) certain other consumer actions, such as clicks, impressions, applications, etc. (collectively, “Consumer Actions,” and together with the Leads, Call Transfers and Inbound Calls, the “Actions”) for DMS’s third party advertiser and/or lead buyer clients (collectively, “Advertisers”). Distribution of Ads is permitted only with the prior express consent of DMS. In connection with generating Actions hereunder, and depending on which method(s) is/are authorized in the Campaign Descriptions, Publisher and/or its Marketing Affiliates (as defined below) may: (i) send Ads via e-mail (“Publisher E-mail”) to individuals contained in the proprietary database(s) of Publisher and/or its Marketing Affiliates (collectively, “Publisher Database”) (ii) feature certain Ads on websites owned and/or operated by Publisher and/or its Marketing Affiliates (collectively, “Publisher Sites,” and together with the Publisher E-mail, Publisher Calls and Publisher Database, the “Publisher Media”).  For purposes of this Agreement, the activities engaged in by Publisher in (i) through (ii) of this Section 1 shall be referred to as the “Services.”  

2. Effective Date. The Effective date of this Agreement shall be the earlier of: (a) the date written by Publisher below upon signature of this Agreement, if Publisher executes a paper copy, or (b) the date that Publisher electronically submits an application to publish Ads under the terms of this Agreement ("Application"). This Agreement shall become null and void if DMS denies Publisher's Application for any reason. Publisher is responsible for providing complete and accurate information in the Application and ensuring that DMS has, at all times, Publisher’s then-current contact information. Where Publisher submits an Application, Publisher acknowledges and agrees that Publisher accepts this Agreement via electronic means rather than via traditional handwritten signature (“Electronic Acceptance”).  Publisher acknowledges and agrees that by clicking the submit button, or taking such other action as may be designated by DMS as a means of accepting this Agreement, Publisher is submitting a legally binding electronic signature and is entering into a legally binding contract.  Publisher acknowledges that Publisher’s electronic submission constitutes Publisher’s agreement and intent to be bound by this Agreement.  Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) and other similar state and federal statutes, PUBLISHER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PORTAL AND/OR ANY OTHER ONLINE PLATFORMS, WEBSITES AND/OR SERVICES OPERATED BY DMS.  Further, Publisher hereby waives any rights and/or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.  Publisher acknowledges and agrees that it has the ability to print information delivered to Publisher electronically, or otherwise knows how to store that information in a way that ensures that it remains accessible to Publisher in unchanged form.

3. Termination. 
1. Termination Without Cause. Either Party may terminate this Agreement at any time, with or without cause, upon notice in accordance with this Agreement to the other, which may be provided via electronic mail. Termination is effective upon two (2) business days after such notice is sent. Publisher will not be paid for its Services past the date of termination. 
2. Termination For Cause. DMS may terminate this Agreement immediately upon e-mail notice or notice posted in the Portal to Publisher if it learns of, or has reason to suspect that, Publisher or its Marketing Affiliates have breached any material provision or express warranty in this Agreement. Subsequent to such termination: (a) DMS shall incur no liability or further obligation to Publisher (including any due or owing payments for the Services); and (b) DMS may share all information about Publisher and its Marketing Affiliates with any law enforcement agency, government agency, or individual/entity claiming to have been harmed by any such breach. Without waiving its right to terminate, DMS may elect a lesser remedy including, without limitation, requiring Publisher to pause or terminate a campaign or Marketing Affiliate. 
4. Registration of Domain Names. Publisher must register with DMS all active domain names, subdomain names, and email addresses associated with the Publisher Sites/Publisher E-mail used by Publisher to display and/or distribute Ads. Publisher must update its list of registered domain names, subdomain names, and email addresses in real-time to ensure the list is accurate and complete at all times. Domain names used to send Ads via electronic mail must be properly registered such that each domain name is traceable to the sender by performing a single WHOIS lookup. 

5. Ads; Advertising Rules. Where indicated in the Campaign Descriptions, DMS may provide Publisher with certain Ads (“DMS Ads”).  Unless Publisher is permitted to use Publisher Ads (as defined below) as set forth in the Campaign Descriptions, copy, images, graphics, banner ads, links or process other than the DMS Ads may be used by Publisher in connection with the Services without first obtaining the prior express written permission of DMS.  Publisher will not edit, modify, deviate from or otherwise make any changes to any DMS Ads in any manner, whatsoever.    The Parties understand and agree that, as between DMS and Publisher, DMS is the sole owner and/or licensee of any and all intellectual property rights associated with the DMS Ads.  For the term of this Agreement only, DMS grants to Publisher a limited, revocable, non-transferable, non-exclusive, royalty-free license to use the DMS Ads, including the trademarks, service marks, trade names and logos that DMS may adopt from time to time (“Marks”) solely and exclusively as necessary to perform its Services hereunder.    

Where DMS permits Publisher to use Publisher Ads in the Campaign Descriptions and/or DMS otherwise provides prior written approval to Publisher in each instance, Publisher may use its own images, graphics, links, copy, or other Ads material in connection with its Services hereunder (collectively, “Publisher Ads”).  Publisher must submit all Publisher Ads for approval for DMS prior to publication/distribution of same, which approval may be withheld by DMS in its sole discretion.  Publisher will not edit, modify, deviate from, or otherwise make any changes to, any Publisher Ads in any manner, whatsoever, after same have been approved for distribution and/or use by DMS.  Publisher shall be fully responsible for all aspects of the Publisher Ads. Publisher must use and may not alter or remove any software code associated with an Ad provided by DMS (e.g., pixels, tags, JavaScript), or the website to which the Ad is linked. 
1. Telemarketing, Faxing, and Text Messages. Publisher and Marketing Affiliate are prohibited from publishing or otherwise distributing Ads by telemarketing, fax, or text messaging in any form to any device. 
2. DMS Marks. Publisher will not use any Marks except with the prior written permission of DMS and subject to any conditions that DMS may impose on such use. 
3. Unless otherwise authorized in the Campaign Descriptions, Publisher may not: (a) include or promote any Ad by or through any blogs, news articles, third party newsgroups, message boards or other social media outlets in connection with the Services provided hereunder; or (b) use any endorsements or testimonials in connection with marketing the Ads.  Where Publisher is authorized in the Campaign Descriptions to engage in the marketing activities described in Section 5(3)(a) and (b) above, Publisher shall fully comply with the Federal Trade Commission Guidelines Concerning the Use of Endorsements and Testimonials and Native Advertising: A Guide for Businesses (collectively, the “FTC Guidelines”)
4. General Advertising Prohibitions. No Ads published or otherwise distributed by Publisher or Marketing Affiliate shall: (a) contain content that is an invasion of privacy, degrading, libelous, unlawful, deceptive, profane, obscene, pornographic, tends to ridicule or embarrass, or is in bad taste, as determined in the sole discretion of DMS; (b) spawn malicious, false, or deceptive pop-ups or exit pop-ups; (c) generate leads that are not initiated by the affirmative acts of a consumer; (d) promote any illegal activity including, without limitation, gambling, illegal substances, software piracy, or hacking; (e) spoof, or redirect, traffic to or from any adult-oriented websites or other websites not specifically designated by DMS as landing pages; (f) use invisible methods to generate impressions, clicks or transactions that are not initiated by a user; (g) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the network internet protocol, media site tags, source codes, links, pixels, modules, or other data provided by or obtained from DMS that allows DMS to serve the Ads, measure performance, and/or operate the advertising network; (h) place statements near the Ads requesting action (e.g., "please click here") or use misleading statements (e.g., "you will win..."); (i) intentionally place Ads on blank web pages; (j) place Ads on non-approved websites; or (k) redirect traffic to websites other than those approved and listed by a particular advertiser. 
5. Advertising Modifications. DMS may subsequently add, change, or remove some or all of the applicable Ads, in which event Publisher shall ensure that it is using the most current version of the Ads within twenty-four (24) hours of DMS's notification of such change. 
6. No Incentivized Lead Generation. Publisher and Marketing Affiliates shall not use or offer incentives, points, rewards, cash, sweepstakes entries, or prizes to consumers (collectively, “Incentivized Offers”), unless otherwise provided by DMS in the Campaign Descriptions, to solicit a response to an Ad. Where Publisher is authorized in the applicable Campaign Description to engage in marketing that involves Incentivized Offers, Publisher must comply with the terms of Exhibit A hereto.
7. Electronic Mail ("Email") Content Requirements. Publisher Email must use only Ads, from lines and subject lines, provided by DMS. Publisher and Marketing Affiliate are prohibited from removing or altering the "subject" and "from" lines provided by DMS. Additionally, Publisher Email must have: (a) accurate email header information (including source, destination, date and time, and routing information) and accurate, non-misleading subject lines and from lines; (b) an identification that the message is an advertisement or solicitation; (c) clear and conspicuous notice of the recipient's right to opt-out of receiving future emails from DMS; (d) a functioning return email address or other Internet-based mechanism that a recipient may use to make such an "opt-out request; and (e) a valid physical postal address of the advertiser. 
8. Email Suppression Lists/Do Not Call Lists. Pursuant to the requirements of the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), the Amended Telemarketing Sales Rule, 16 C.F.R. § 310.4(b)(iii) (the “TSR”) and the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (the “TCPA”)), in addition to adhering to any federal or state e-mail marketing laws and Do Not Call list(s), Publisher must maintain an internal Do Not Call list, and e-mail opt out list (collectively, the “Suppression Lists”), for consumers who have asked: (a) Publisher or its Marketing Affiliates, as applicable, not to contact them; and/or (b) not to be contacted on behalf of the applicable Advertiser.  Consumer requests to be placed on Publisher’s or its Marketing Affiliate’s internal Suppression List(s), as applicable, must be honored within the period required by law.  Publisher and Marketing Affiliate shall provide Suppression List updates to DMS within forty-eight (48) hours of receipt of a subject consumer’s request.  Further, Publisher shall: (i) use the Suppression Lists, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; (ii) regularly use such Suppression List to remove any and all: (A) e-mail addresses contained therein from the receipt of future commercial e-mail messages; and (B) telephone numbers contained therein from receipt of future telemarketing; (iii) not retain a copy of any Suppression List following termination of this Agreement; (iv) not use any Suppression List for purposes of data appending in any manner whatsoever; (v) hold any Suppression List made available by DMS in trust and confidence; and (vi) not disclose any Suppression List made available by DMS to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms of this Agreement.  Publisher further agrees and acknowledges that: (A) it has downloaded and removed the domains located on the Federal Communications Commission’s wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in mailings hereunder; and (B) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained therein will be removed before sending any mailings hereunder.  . 
9. Email Monitoring. Publisher and Marketing Affiliate must enable DMS to monitor Publisher Email messages at DMS's request to ensure compliance with all Applicable Laws. Publisher must monitor, and will take all reasonable steps necessary to allow DMS to monitor the activity of Marketing Affiliates. 
10. Notification of Complaints. Publisher and Marketing Affiliate must notify DMS of any complaint received by Publisher or any Marketing Affiliate regarding any of the marketing practices described herein within twenty-four (24) hours of receiving such complaint. 
11.  Fraudulent Actions.  Publisher may not, nor knowingly permit any person to, inflate the number of Actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, iFrames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person completing a Lead registration form or other Action, as applicable.  In connection with the Services provided hereunder, Publisher may not: (a) place misleading statements in close proximity to the Ads; (b) take control of an end-user’s computer by delivering advertisements that the end-user cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; or (c) install or execute on another's computer one (1) or more additional software program(s) without consent of the end-user, including spyware or other similar harmful software. 
12.  Employment/Recruitment Actions. Without limiting any other of the provisions of this Agreement, where the Services involve generating employment and/or recruitment-related Actions, Publisher shall not misrepresent or assist others in misrepresenting, expressly or by implication: (a) that any end-users have been specially selected to apply, or schedule an interview for a job, with a specific employer; (b) that any employment opportunity is guaranteed; (c) that Publisher, any Advertiser and/or DMS represent, or are affiliated with, any specific employer hiring to fill an open job position; or (d) any other fact material to consumers concerning any employment opportunity.  Further, Publisher agrees to clearly and conspicuously provide the following disclaimer on any and all Publisher Sites used in connection with generating employment and/or recruitment-related Actions: “This site may provide a list of third-party job listings and is not affiliated with any employer.  You may be transferred to a third-party website to apply for specific jobs.”  In addition to the foregoing, Publisher shall, prior to collecting any consumer data: (i) clearly and conspicuously disclose to each consumer that: “Sharing your personal information is optional.”; and (ii) provide consumers with a clear and conspicuous means of accessing information related to employment or potential employment without disclosing consumer data.  Further, Publisher shall not transfer consumers to any third-party website without first disclosing that consumers are being transferred to such a third-party website.
13.  Publisher may not use third-party trademarks without the permission of the trademark owner, or any other term excluded in any applicable Campaign Descriptions, in any manner to direct traffic to any Publisher Sites in connection with the Services provided hereunder.  This prohibition includes, but is not limited to, purchasing keywords from search engine service providers (“Paid Search Networks”), or purchasing inclusion in search engine networks (“Paid Inclusion Networks”), where the associated keywords include the trademark, service mark and/or brand name of any third party.  Without limiting the foregoing, Publisher must not violate the rules, requirements or regulations of any Paid Search Network or Paid Inclusion Network.
14. Failure to Comply. Without limiting any other remedies specified herein or otherwise available to DMS, Publisher's or Marketing Affiliate's failure to comply with this Section 5 will result in non-payment for the entire program and may result in termination of Publisher and this Agreement by DMS. 

6. Use of Marketing Affiliates. If Publisher engages or arranges for third-party publishers, affiliates and/or marketing agents (collectively, "Marketing Affiliate(s)") to distribute Ads on behalf of Publisher hereunder, Publisher must: (a) require each Marketing Affiliate to agree to terms and conditions substantially similar to the requirements set forth in this Agreement; and (b) indemnify DMS for all of the actions and/or omissions of any Marketing Affiliates or any other parties working with, for, or under Marketing Affiliates. For purposes of this Agreement, any reference to Publisher shall include any and Marketing Affiliates.  Publisher represents and warrants that any and all Actions generated by Publisher from or through Marketing Affiliates shall comply with each and every requirement set forth in this Agreement.  Publisher shall remain, at all times, fully liable for any and all acts and/or omissions of its Marketing Affiliates, and for ensuring that each such Marketing Affiliate complies with any and all obligations, restrictions and other terms applicable to Publisher under this Agreement.  Publisher must keep records of all Marketing Affiliates (including full contact information) and Ads distributed by such Marketing Affiliates during the term of this Agreement, and upon the written request by DMS, provide such information in a timely manner. DMS may terminate its authorization for Publisher’s use of one or more Marketing Affiliates at any time and for any reason.  Publisher's failure to comply with the preceding provision will result in: (i) Publisher automatically forfeiting the right and claim to any payment due under this Agreement or in connection with any other services between DMS and Publisher; and (ii) automatic termination of this Agreement by DMS. The rights provided in this Section 6 shall not be deemed exclusive of any other rights or remedies to which DMS may be entitled to under this Agreement. 

7. Consumer Consents.
1. Publisher further represents and warrants that all Leads will consist of individuals that have provided: (i) “Affirmative Consent,” as defined in CAN-SPAM, to receive commercial e-mail from the designated Advertiser(s) and/or DMS, as applicable; and (ii) the requisite consent (“CASL Consent”) to receive “Commercial E-Mail Messages,” as defined under Canada’s Anti-Spam Legislation (“CASL”), from the designated Advertiser(s) and/or DMS, as applicable, where such Leads contain the e-mail address(es) of any resident(s) of Canada.  Publisher shall retain the records of each individual’s Affirmative Consent, and/or CASL Consent as applicable (“Consent Records”), for a minimum of five (5) years following collection of same.  Publisher must, concurrently with providing the Leads to DMS, provide the: (A) Consent Records to DMS; and (B) name, date, time, IP address and referral URL where the applicable individual(s) submitted the Consumer Data. 
2. Publisher shall not take any action to encourage, compel, or mislead any consumer to provide any consents contemplated by this Agreement (including CASL Consent, Re-Sale Consent and/or Affirmative Consent (collectively, “Covered Consents”)), including: (a) requiring any Covered Consent as a condition of use of the services on any website or app owned or operated by Publisher (or its Marketing Affiliates) or the opportunity to make a purchase or earn or qualify for any reward; or (ii) obtaining any Covered Consent through a user interface that fails to provide a clear option to proceed without providing such Covered Consent
3. Site Visit Recordation Technology.  Publisher acknowledges and agrees that certain DMS Ads may utilize, and certain Publisher Ads and/or Publisher Media may utilize, consumer site visit recordation technologies (including, but not limited to, Jornaya’s Lead ID, Active Prospect’s TrustedForm, HotJar and Mouseflow).  In light of the foregoing and if applicable: (a) the Publisher Privacy Policy (as defined below) must contain a prominent disclosure, in plain English, stating that third parties, including DMS’s Advertisers, employ Jornaya’s Lead ID and/or Active Prospect’s TrustedForm (collectively, “Site Visit Recordation Technology”), as applicable; (b) Publisher must obtain affirmative consent to use Site Visit Recordation Technology from each user prior to Jornaya’s Lead ID and/or Active Prospect’s TrustedForm recording such user’s actions on the applicable Publisher Site(s) (“Recordation Prior Consent”); (c) Publisher must obtain Recordation Prior Consent by including prominent language above a “submit” or other call to action button (collectively, “Submit Button”) on each Publisher Site stating that, by clicking on the Submit Button the user understands and agrees that the Publisher Site uses Site Visit Recordation Technology to memorialize site visits, including technology provided by third parties, including Jornaya’s Lead ID or Active Prospect’s TrustedForm, as applicable; and (d) Publisher shall ensure that Jornaya’s Lead ID and/or Active Prospect’s TrustedForm technology shall not record such user actions on the applicable Publisher Site unless and until Publisher has obtained Recordation Prior Consent, as indicated above. 

8. Payment Terms. 
1. Campaign Descriptions. Payment terms for the Services, as well as a description of the required consumer Actions that constitutes valid, payable Actions, shall be specified in the Campaign Descriptions. DMS shall not pay for Actions that are invalid or do not meet the requirements specified in this Agreement or the Campaign Descriptions, including any Actions that are incomplete, invalid, generated by fraud, in excess of the requirements set forth in the Campaign Descriptions, or generated through any alleged unlawful email. Further, DMS shall not be responsible to pay Publisher for Actions that are not recorded due to Publisher's error. 
2. Payment Rate and Terms. DMS reserves the sole right to set or adjust Ad campaign rates, which will vary depending on market conditions. Publisher will typically be paid within fifteen (15) days, but not more than sixty (60) days, after the end of the month. Custom payment terms are available subject to DMS's prior written approval. 
3. Additional Payment Terms. No payment will be issued for any amount less than $50 ("Minimum Payment"). All unpaid earnings will rollover to the next period. Based on the Minimum Payment, any Publisher account that goes unpaid for six (6) months becomes subject to immediate payoff and termination. As a condition for payment hereunder, Publisher must log into its account and provide: (a) the correct mailing address or payment instructions; (b) the correct email address; and (c) a completed and accurate W-9 or equivalent (for U.S. Publishers) or W-8 or equivalent (for Non-U.S. Publishers). DMS shall be entitled to withhold payment and recoup expenses for: (i) any stop-payment that it is required to issue; or (ii) wire fee incurred. DMS may take legal action and reserves the absolute right to withhold payment from accounts for Publishers that violate any of the terms and conditions set forth in this Agreement or the Campaign Descriptions. Any Publisher dispute regarding payment ("Payment Dispute") must be made within thirty (30) days from the date of the subject invoice. If Publisher does not provide a written dispute to DMS regarding payment or the payment terms within such time period, Publisher will have waived the right to bring an action regarding any Payment Dispute. 
9. Audit of Records. Publisher agrees that, at all times during the term of this Agreement, it shall maintain accurate books and records relating to its Services (as well as its use and re-sale of any consumer data) under the Agreement, as well as Publisher’s compliance with Applicable Law (including Applicable Privacy Laws) and the terms of the Agreement (collectively, the “Audit Items”).  Publisher agrees that DMS, or any designee of DMS that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the Term, and for six (6) months thereafter, to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Publisher at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit.  Such audit shall be at DMS’s sole cost and expense and shall be strictly limited to those books and records that specifically relate to the Audit Items.  Notwithstanding the foregoing, if DMS uncovers any material misconduct associated with Publisher’s Services hereunder, then the audit shall be at the sole cost and expense of Publisher. 

10. Use of Collected Data; Ownership. Unless otherwise authorized by DMS, Publisher and its Marketing Affiliates will not: (a) use or disclose Campaign Description details, information regarding DMS's customers, data regarding a campaign gathered during the delivery of an Ad pursuant to a Campaign Description (e.g., interaction or header information), or end user's recorded view or click of an Ad, for repurposing or any other purpose other than: (i) performing the Services; (ii) compensating data providers in a way that precludes identification of DMS or its customers; or (iii) for internal reporting and analysis; or (b) use or disclose any personally identifiable information collected from individual users by the Publisher during delivery of an Ad pursuant to this Agreement or a Campaign Description. All right, title and interest in and to the collected data shall vest in DMS or its Advertisers, as applicable. 

11. Compliance with Consumer Requests.
1. Publisher shall timely honor all Consumer Requests (as defined below), as required by Applicable Privacy Laws.  Without limiting the foregoing, Publisher shall notify DMS, in writing, of any requests received from any individual whose Covered Personal Information (as defined below) was accessed by Publisher in connection with the Agreement, including any consumer requests to: (a) opt-out from and/or limit the use and/or sharing of sensitive Covered Personal Information (“Request to Limit”); (b) opt out from the sale and/or sharing of any Covered Personal Information (“Request to Opt-Out”); and/or (c) delete any Covered Personal Information collected (“Request to Delete”). 
2. Each party shall provide all assistance as is reasonably requested by the other party to meets its obligations under Applicable Privacy Laws with respect to responding to individuals’ Consumer Requests, including opt-out preference signals.  Such assistance shall be promptly provided.  Publisher shall notify DMS no later than five (5) business days after Publisher makes a determination that it can no longer meet its obligations under any Applicable Privacy Laws. 
3. For purposes of the Agreement, “Consumer Requests” means consumer: (a) requests to correct inaccurate and/or outdated Covered Personal Information; (b) Requests to Limit; (c) Requests to Opt-Out; (d) requests to know the: (i) categories of Covered Personal Information that such party has collected about the subject consumer(s); (ii) specific pieces of Covered Personal Information that such party has collected about the subject consumer(s); (iii) categories of sources from which the Covered Personal Information is collected; (iv) business or commercial purpose for collecting, selling and/or sharing the subject Covered Personal Information; and (v) categories of third parties to whom such party discloses Covered Personal Information; (e) requests to opt-out of profiling; (vi) requests to opt-out of targeted advertising; and/or (f) Requests to Delete. 
4. For purposes of the Agreement, “Covered Personal Information” means any personally identifiable information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to any individual or household that would be considered a resident of California, Colorado, Connecticut, Delaware, Florida, Indiana, Iowa, Kentucky, Maryland, Minnesota, Montana, Nebraska, New Jersey, New Hampshire, Oregon, Rhode Island, Tennessee, Texas, Utah or Virginia.  

12. Additional Assurances. Publisher and Marketing Affiliates shall, upon request by DMS, provide to DMS reasonable additional assurance of compliance with this Agreement, including the Advertising Rules, in DMS's sole and absolute discretion, including, but not limited to, evidence of due diligence, copies of emails and advertising materials, copies of all information pertaining to complaints received by Publisher or Marketing Affiliates, evidence of termination of dealings with Marketing Affiliates, and all such other information that DMS may reasonably require to confirm that Publisher or its Marketing Affiliates is/are acting in strict compliance with all Applicable Laws, as well as the terms of this Agreement. 

13. Rights and Remedies. If DMS learns, or has good reason to suspect, that Publisher or its Marketing Affiliates is/are not in compliance with the terms of this Agreement, DMS will have the right to: (a) immediately terminate this Agreement without incurring any additional liability or further obligation; (b) refuse to pay any amounts due (including past due amounts) and owing by DMS to Publisher, and (c) require Publisher to terminate a specific Marketing Affiliate. Upon termination of a Marketing Affiliate, Publisher may not assign a new identification reference to the terminated Marketing Affiliate or take any other means to circumvent DMS's termination of the Marketing Affiliate. The rights provided in this Section 13 shall not be deemed exclusive of any other rights or remedies to which DMS may be entitled to under this Agreement. 

14. Limitation of Liability. 
1. THE ADS PROVIDED BY DMS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW.  FURTHER, DMS MAKES NO WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS, PROMISES, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS OR IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. DMS MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE MARKETING CAMPAIGNS CONTEMPLATED HEREUNDER.  
2.  EXCEPT FOR VIOLATIONS OF SECTION 15 ("INDEMNIFICATION") AND SECTION 16 ("CONFIDENTIAL INFORMATION"), UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. MOREOVER, DMS SHALL NOT IN ANY EVENT BE LIABLE TO PUBLISHER FOR: (A) MORE THAN THE AMOUNT PAID TO PUBLISHER UNDER THIS AGREEMENT; OR (B) THE ACTS AND/OR OMISSIONS OF ANY ADVERTISER UNDER ANY CIRCUMSTANCES. 
15. Indemnification. Publisher hereto agrees to indemnify, defend, and hold DMS harmless from and against any and all actions, claims (including first party claims brought by DMS against Publisher), demands, proceedings, liabilities, damages, judgments, settlements, fines, penalties, costs, and expenses, including attorneys' fees and related costs, that arise from or relate to: (a) the act(s) or omission(s) of the Publisher; (b) a breach or non-compliance by the Publisher of this Agreement or any express warranty contained herein; (c) any acts or omissions of any Marketing Affiliate or any other parties working with or under such Marketing Affiliate related to this Agreement; (d) the requisite Prior Written Consent, CASL Consent, Re-Sale Consent and/or Affirmative Consent, as required where the applicable Actions are Leads; or (e) any contaminated file, virus, worm, or trojan horse originating from the Publisher's media properties (collectively, a "Claim"). If any action is brought against DMS in respect to any allegation for which indemnity may be sought from the Publisher, DMS will notify the Publisher of any such Claim of which it becomes aware and will: (i) reasonably cooperate with the Publisher at Publisher's expense in connection with the defense or settlement of any such Claim; and (ii) be entitled to participate at its own expense in the defense of any such Claim. Publisher may, upon written notice to DMS, undertake to conduct all proceedings or negotiations in connection with a Claim, and if Publisher so undertakes, it will also undertake all other required steps or proceedings to settle or defend any such action, including, without limitation, the employment of counsel selected by DMS and payment of all expenses as they become due. Publisher will reimburse DMS upon demand for any payments made or loss suffered by it in connection with any Claim, including legal expenses incurred by DMS. Publisher will keep DMS informed of and consult with DMS concerning the defense or settlement of each Claim. Publisher will not have any right, without DMS's prior written consent, which consent may be withheld in DMS's sole and absolute discretion, to agree or consent to any stipulation, admission, or acknowledgement of any fault, guilt, wrongdoing or liability on the part of DMS or to any settlement, judgment or order. 

16. Confidential Information. 
1. Confidential Information. The Parties acknowledge that in the course of fulfilling their obligations under this Agreement, Publisher may have access to certain confidential information of DMS, which may include, but is not limited to: (a) all documents, marketing materials, data files, information, and other materials made available to Publisher in connection with this Agreement, including without limitation: names, email addresses and other personal information pertaining to Actions generated for DMS; (b) DMS's sales, cost, pricing, and financial information; (c) the names and contact information for potential and actual DMS Advertisers; (d) the identity and contact information of DMS's employees, contractors, other publishers, and other marketing affiliates; (e) the methods used by DMS to acquire consumer actions; (f) DMS's business plans; (g) DMS's marketing strategies, methods, and materials; (h) DMS's computer programs and source code; and (i) all related information (collectively "Confidential Information") shall be deemed to have been furnished to Publisher in confidence and shall remain the sole and exclusive property of DMS during and after the term of this Agreement. Publisher shall not at any time use Confidential Information for its own benefit, or disclose or permit any of its employees, agents, or representatives to disclose Confidential Information without DMS's prior written consent. 
2. Excluded Material. Confidential Information does not include information: (a) already known to Publisher prior to DMS's disclosure to Publisher; and (b) already known to the public, other than as a result of breach of this Agreement. 

17. No Use of Confidential Information. Publisher, on its own behalf and on behalf of its Marketing Affiliates, hereby represents and warrants that it shall not, for any reason or under any circumstance at any time, directly or indirectly use, convert, apply, appropriate, employ, alter, transform, assign, put into operation or otherwise use any of the Confidential Information, in whole or in part, for any purposes whatsoever, other than as expressly permitted herein. Publisher acknowledges any such action taken by it or its Marketing Affiliates is in contravention to this Agreement and is strictly prohibited. A breach of this section will cause DMS irreparable harm and shall entitle DMS to immediate injunctive relief, in addition to an award of damages. 
18. Representations and Warranties. 

1. Mutual Representations. Each Party represents and warrants that it has the authority to enter into this Agreement and each Party has obtained all authorizations, consents or permits required to perform its obligations under this Agreement and to conduct its business. 
2. Publisher Representations. Publisher hereby represents and warrants that: (a) it, as well as its Services, Publisher Ads, Publisher Media and Marketing Affiliates, will comply with all applicable state and federal laws, rules, Federal Trade Commission and Federal Communications Commission implementing regulations, international laws, rules and regulations including, but not limited to (and any state law analog), Applicable Privacy Laws, , the FTC Guidelines, the Gramm-Leach Bliley Act, the Federal Trade Commission Act, CAN-SPAM and all state anti-spam laws, including but not limited to California Business & Professions Code §§ 17529 et. seq., and the Canada Anti-Spam Law (including the law's requirement concerning obtaining consent from email recipients) as to email campaigns send to residents of Canada, CASL, the EU General Data Protection Regulation (“GDPR”), the UK General Data Protection Regulation (“UK GDPR”), the TCPA, the Federal Communications Act, the TSR, and laws governing the National Do-Not-Call Registry, and any and all rules and regulations promulgated under any of the foregoing (collectively, “Applicable Law”); (b) any and all Publisher Sites and Publisher E-mail shall, at all times during the Term, link to a privacy policy (“Publisher Privacy Policy”) that complies with all Applicable Law, including Applicable Privacy Laws; (c) the Publisher Privacy Policy shall explain that Publisher is allowed to share any information collected on the Publisher Sites, through Publisher E-mail and/or through Publisher Calls, as applicable, with third parties, such as the designated Advertiser(s) and/or DMS, as applicable, for the marketing purposes contemplated hereunder; (d) the Publisher Privacy Policy shall contain all provisions necessary to obtain and maintain Re-Sale Consent; and (e) the consumer data associated with the Actions will be obtained, collected and compiled without employing harvesting, dictionary attacks and/or any other deceptive or illegal act or practice. 


19. Miscellaneous. 
1. Survival. Sections 9, 10, 11, 14, 15, 16, 17, and 18 and any other provision the survival of which necessary to give effect to its intent will survive any termination of expiration of this Agreement. 
2. Notice. All notices hereunder shall be given to the appropriate Party either in writing, fax, or email. If to Publisher, then to the address, email, or fax set forth in the Publisher information section of the Portal. If to DMS, at the address set forth above with a copy to DMS Performance Ad Market, ATTN: Legal Department/General Counsel, legal@dmsgroup.com. 
3. Assignment. Publisher may not assign this Agreement and/or its rights or delegate its duties under this Agreement without the prior written consent of DMS.  DMS may assign this Agreement without the consent of Publisher. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns. 
4. Severability. If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, such decision will not affect the validity of any or all of the remaining portions hereof. 
5. Headings. Section or paragraph headings used in this Agreement are for reference purposes only; and should not be used in the interpretation hereof. 
6. Waiver; Delay. The failure of either Party to insist upon or enforce performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect. 
7. Force Majeure. Neither Party will be liable for, or will be considered to be in breach of this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence (each, a “Force Majeure Event”).  If any Force Majeure Event occurs (which shall include, without limitation, acts of God, COVID-19 and any similar disease, virus and/or pandemic, telecommunications, Internet or network failure, results of vandalism or computer hacking, fire, explosion, storm or other natural occurrences, any conflicting order, direction, action or request of any applicable governmental body (including, without limitation, state and local governments) or of any regulatory department, agency, commission, court, bureau, corporation or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, wars, strikes or other such labor difficulties), the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of such Force Majeure Event.  Notwithstanding the foregoing, the Parties’ obligations to one another shall be excused and/or postponed during and only for the duration of the applicable Force Majeure Event and shall resume as soon as practicable after the Force Majeure Event has ended. 
8. Relationship of the Parties. Nothing contained herein shall in any way be construed to interpret this Agreement as creating a partnership, joint venture, employment or franchise relationship between the Parties hereto. It is expressly agreed that the Parties are acting hereunder as independent contractors and under no circumstances shall any of the employees of one Party be deemed the employees of the other for any purpose. This Agreement shall not be construed as authority for either Party to act for the other Party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except to the extent and for the purposes expressly provided for herein. 
9. Governing Law; Venue. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Florida, without regard to its conflict of laws rules.  If any legal action is required to enforce this contract, Advertiser agrees to the sole and exclusive personal jurisdiction and venue in the state and federal courts located in the State of Florida, Counties of Pinellas or Hillsborough. If any litigation, action or other proceeding is threatened and/or commenced between the Parties or their personal representatives arising out of, concerning and/or related to any provision of this Agreement, or the assertion and/or protection of any issue, interest, right and/or duty of any person in relation thereto, whether or not litigation is actually initiated, the prevailing Party shall be entitled to recover from the non-prevailing or defaulting Party, in addition to other relief as may be granted, its reasonable attorneys’ fees in either prosecuting and/or defending such threat, actual litigation, mediation and/or settlement efforts including, but not limited to, pre-litigation, litigation, trial, post judgment collection, appellate and bankruptcy-related legal fees and costs. 
10. Monetary Amounts. All monetary amounts specified in this Agreement are in United States Dollars. 
11. Entire Agreement. These Publisher Standard Terms and Conditions, together with the Exhibits hereto, as well as the Campaign Descriptions, are the complete agreement between the Parties with respect to the subject matter hereof, and supersede and replace all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. The terms and conditions of this Agreement will prevail over any contrary or inconsistent terms in any other writing, including any Campaign Descriptions.
12. Modification of Terms. DMS reserves the right to modify, amend, or update this Agreement at any time. Any changes will be effective immediately upon posting the revised terms on our website or platform. Your continued use of our services after such changes are posted constitutes your acceptance of the updated terms. It is your responsibility to review the terms periodically for any updates. If you do not agree to the revised terms, you must discontinue using our services.
13. Public Release. Publisher shall not release any information regarding any Ads or Publisher's relationship with DMS, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of DMS in each instance. 
14. Counterparts; Electronic Signature. This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which together constitute one and the same instrument. A Party may deliver an executed copy of this Agreement by electronic mail, facsimile transmission, other means of electronic communication capable of producing a printed copy, or by agreeing to the terms and conditions by checking the box below when applying to DMS Performance Ad Market, https://digitalmediasolutions.everflowclient.io

 
EXHIBT A

TERMS APPLICABLE TO INCENTIVIZED OFFERS

Where Publisher is authorized in the applicable Campaign Description to engage in marketing that involves Incentivized Offers, Publisher must comply with the following additional terms and conditions.  For purposes of this Exhibit A, “Reward” means anything of value offered to consumers, including a gift card, check, cash-value deposit on a mobile payment application or other cash equivalents, a mobile device, or any other good in exchange for completing tasks, disclosing personal information, making purchases, or taking other actions.

1.	Neither Publisher, nor any Marketing Affiliate, shall misrepresent or assist others in misrepresenting, expressly or by implication: 

(a)	That any consumer has won or been specially selected to receive a Reward;

(b)	That consumers will receive a Reward in exchange for providing personal information, without any other cost or obligation;

(c)	That consumers will receive a Reward in exchange for completing a survey, without any other cost or obligation;

(d)	That any specific Reward offered by Publisher or any Marketing Affiliate is available only for short period of time or in a limited quantity;

(e)	That Publisher, or any Marketing Affiliate acting on its behalf, is, represents, or is affiliated with, any third party businesses;

(f)	The monetary obligations a consumer is likely to incur to obtain a Reward;

(g)	The amount of time in which a consumer will receive a Reward;

(h)	The need for promptness or urgency in responding to any advertising, marketing, or promotion of a Reward; 

(i)	Any other fact material to consumers concerning any Reward such as: (i) the total costs; (ii) any material restrictions, limitations or conditions; or (iii) any aspect of the benefits, nature, or central characteristics of any Reward; and/or

(j)	That the opportunity to qualify for any Reward is an employment opportunity;

2.	Publisher shall disclose, clearly and conspicuously, the material terms and conditions of obtaining a Reward, including:

(a)	In any advertisement and on any website or mobile application that represents, directly or indirectly, expressly or by implication, that consumers can earn, qualify for, or receive a Reward from Publisher or any Marketing Affiliate, that to qualify for a Reward, a consumer will incur monetary obligations;	

(b)	On any website or mobile application that represents, directly or indirectly, expressly or by implication, that consumers can earn, qualify for, or receive a Reward from Publisher: (i) all non-monetary obligations a consumer is likely to incur to obtain a Reward, such as disclosure of Consumer Data, completion of survey questions, or providing any Covered Consent; and (ii) the total monetary cost incurred by consumers, on average, who succeed in qualifying for a Reward of the same or similar value to the Reward advertised, marketed, promoted or offered to the consumer; provided, however that a disclosure that includes: (A) the average costs incurred by consumers who succeeded in qualifying for the highest value Reward offered; and (B) the average costs incurred by consumers who succeeded in qualifying for a Reward of a value that is no less than half that of the highest value Reward offered shall be sufficient for purposes of compliance with this this Section 2(b) of Exhibit A;

(c)	The amount of time permitted to complete deals required to qualify for a Reward;

(d)	The average number of days between a consumer’s registration and issuance to consumers of a Reward of the same or similar value to the Reward advertised, marketed, promoted, or offered to the consumer; and

(e)	The percentage of consumers, in the past year, who received from Publisher or the subject Marketing Affiliate, as applicable, the highest value Reward offered, out of the total number of consumers who registered with Publisher or the subject Marketing Affiliate, as applicable, in connection with such a Reward.

3.	In connection with Rewards offered by any Publisher or any Marketing Affiliate, Publisher and its Marketing Affiliates shall establish, implement, and maintain a system that includes procedures sufficient to:

(a)	Require third parties who offer a deal or other transaction that a consumer may complete to qualify for a Reward to report to Publisher or the subject Marketing Affiliate, as applicable, a consumer’s completion of any such deal or transaction within one business day of completion;

(b)	Ensure that, within twelve (12) hours of receipt of a report of completion under Section 3(a) of Exhibit A, any consumer account or profile that tracks consumer qualification for a Reward reflects the completion of that deal or transaction; or

(c)	Ensure that, a Reward is delivered to a consumer within ten (10) business days of the consumer’s completion of all requirements for obtaining such Reward, or, if the promotion or offer of the Reward specified a time within which the Reward will likely be delivered, ensure that it is delivered within the specified time.
Checking this box serves as an agreement & signature to accepting Digital Media Solution's Terms