DMS Performance Ad Market
Publisher Standard Terms & Conditions
THESE STANDARD ADVERTISING TERMS AND CONDITIONS, AND ANY EXHIBITS OR ATTACHMENTS HERETO (COLLECTIVELY, THE "AGREEMENT") SET FORTH THE ENTIRE AGREEMENT BETWEEN THE PUBLISHER AND DMS HOLDING COMPANY D/B/A DMS PERFORMANCE AD MARKET, WITH A PRINCIPAL ADDRESS OF 4800 140TH AVE. N. STE. 101, CLEARWATER, FLORIDA 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 AS A "PARTY" AND COLLECTIVELY REFERRED TO AS THE "PARTIES."
1. Services. Publisher has experience in providing certain 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) or Advertisement(s)"). The Ads shall be provided by Publisher in accordance with the procedures and specifications set forth in this Agreement and the Campaign Descriptions available on and through DMS's portal (network.dmsgroup.com), which shall be entered into from time to time and incorporated into this Agreement (the "Services"). Distribution of Ads is permitted only with the prior express consent of DMS.
2. Effective Date. The Effective date of this Agreement shall be either (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 to provide complete and accurate information in the Application and ensure that DMS has its current contact information.
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 notice 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 used by Publisher to display 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. Advertising Rules. Publisher and Marketing Affiliate shall publish or otherwise distribute the Advertisements in strict compliance with all applicable laws, rules, and regulations, including but not limited to all laws, rules, and regulations governing: (a) the transmission of unsolicited commercial electronic mail messages or spam (this includes, without limitation, the Can-Spam Act of 2003), California & Business 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; (b) email and Internet-based marketing (this includes, without limitation, the FTC staff guidelines for online negative option marketing disclosures and FTC "Dot Com Disclosures" guidelines, as they may be amended); and (c) marketing to minors, being persons under 18 years old.
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 and Marketing Affiliate will not use any trademark, service mark, trade name, trade dress, logo, copyright, or other intellectual property right (collectively, "Marks") of DMS except with the permission of DMS and subject to any conditions that DMS may impose on such use.
3. Prior Consent. Publisher and Marketing Affiliate agree not to alter, modify or otherwise change any Ads or other content provided by DMS, including but not limited to resizing an Ad, without the prior written approval of DMS.
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, at 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 a landing page; (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 advertising content, in which event Publisher shall ensure that it is using the most current version of the advertising content for the campaign 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, or prizes to consumers, unless otherwise provided by DMS, to solicit a response to an Ad.
7. Electronic mail ("Email") Content Requirements. Emails must use only creative materials, 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, Emails 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 List. Publisher and Marketing Affiliate must remove from any email transmission list any email address associated with any person who previously requested not to receive email solicitations from or on behalf of the advertiser ("Suppression List"). Publisher and Marketing Affiliate are responsible for any sending of email messages as well as proper usage of the Suppression List. Publisher and Marketing Affiliate must not sell, lease, exchange or otherwise transfer or release any opt-out email address on the Suppression List or as otherwise collected by Publisher or DMS except as required by law.
9. Email Monitoring. Publisher and Marketing Affiliate must enable DMS to monitor 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 Marketing Affiliate regarding any of the marketing practices described herein within twenty-four (24) hours of receiving such complaint.
11. 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 other publishers ("Marketing Affiliate(s)") to distribute Ads, 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. Publisher must keep records of all Marketing Affiliates (including full contact information) and Ads distributed by Marketing Affiliates during the term of this Agreement, and upon the written request by DMS, provide such information in a timely manner. Publisher's failure to comply with the preceding provision will result in (a) 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 (b) 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. Payment Terms.
1. Campaign Descriptions. Payment terms for the Services, as well as a description of the required consumer actions that constitutes valid, payable traffic, shall be specified in the Campaign Descriptions. DMS shall not pay for traffic, actions, impressions, clicks, or any other actions that are invalid or do not meet the requirements specified in this Agreement or the Campaign Descriptions, including any of the foregoing that is 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 traffic, actions, impressions, clicks, or any other desired 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 thirty (30) 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 one hundred dollars ($100)("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 their account and provide: (a) the correct mailing address or payment instructions; (b) 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 (y) any stop payment it is required to issue or (z) 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 payment is initially received by Publisher. 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 a Payment Dispute.
9. Audit of Records. Publisher and Publisher's Marketing Affiliates agree to maintain adequate books and records related to the Services. Such books and records shall be available at a place of business for inspection by DMS or its representative, for the purpose of determining whether the correct traffic amounts and payments have been provided in accordance with the terms of this Agreement. DMS shall have the right to have such books and records audited twice (2) per year, upon thirty (30) days advance notice. In the event that such examination finds a discrepancy greater than five percent (5%) of the total amount documented by Publisher during any six (6) month period, Publisher shall pay the full costs of such audit.
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: (1) performing the Services; (2) compensating data providers in a way that precludes identification of DMS or its customers; or (3) 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 the collected data shall vest in DMS or its customers.
11. Compliance with Laws. Publisher and its Marketing Affiliates agree to conduct the Services in strict compliance with the applicable law, including but not limited to CAN-SPAM (15 U.S.C. § 7701), all state anti-spam laws such as California Business & Professions Code §§ 17529 et. seq., 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, and the terms of this Agreement. If Publisher becomes aware of a breach of the terms of Advertising Rules by the Publisher or Marketing Affiliate, Publisher will inform DMS within twenty-four (24) hours of the breach, and provide DMS with detailed information of the breach and the corrective action taken to resolve the breach, as well as the identification of the Marketing Affiliate (if applicable) involved in the breach.
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 Marketing Affiliate is acting in strict compliance with all applicable laws, rules, and regulations, 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 Affiliate is not in compliance with the terms of this Agreement or the Advertising Rules, 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 14 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, 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.
2. EXCEPT FOR VIOLATIONS OF SECTION 16 ("INDEMNIFICATION") AND SECTION 17 ("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 MORE THAN THE AMOUNT PAID TO PUBLISHER UNDER THIS AGREEMENT.
15. Indemnification. Publisher hereto agrees to indemnify, defend, and hold DMS harmless from and against any and all actions, claims, demands, proceedings, liabilities, damages, judgments, settlements, fines, penalties, costs, and expenses, including attorneys' fees and related costs, that: (a) arise solely or in part from the act(s) or omission(s) of the Publisher; (b) arise from or relate to 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; or (d) 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: (y) reasonably cooperate with the Publisher at Publisher's expense in connection with the defense or settlement of any such claim; and (z) be entitled to participate at its own expense in the defense of any such Claim. The 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 but 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: all documents, marketing materials, data files, information, and other materials made available to Publisher in connection with the Agreement, including without limitation: names, email addresses and other personal information pertaining to leads generated for DMS; DMS's sales, cost, pricing, and financial information; the names and contact information for potential and actual DMS customers; the identity and contact information of DMS's employees, contractors, other publishers, and other marketing affiliates; the methods used by DMS to acquire consumers; DMS's business plans; marketing strategies, methods, and materials; computer programs and source code; and all related information (collectively "Confidential Information") shall be deemed to have been furnished to Publisher in confidence and shall remain the 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.
19. 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.
20. Publisher Representations. Publisher warrants and represents that Publisher and its Marketing Affiliates shall provide the Services and conduct all communications, advertising, marketing, sales, and transmissions related to this Agreement in strict compliance with all applicable laws, rules, and regulations, including but not limited to all laws, rules, and regulations governing: (a) commercial electronic mail messages, including CAN-SPAM (15 U.S.C. § 7701) 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; (b) email and Internet-based marketing (this includes, without limitation the Telemarketing Sales Rules of the United States Federal Trade Commission and the Telephone Consumer Protection Act); (c) marketing to minors; and (d) other federal and state consumer protection laws, regulations, and guidelines.
IN WITNESS WHEREOF, the Parties hereto enter this Agreement as of the date first written above.
1. Survival. Sections 9, 10, 15, 16, 17, and 18 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 applicable insertion order. If to DMS, at the address set forth above with a copy to DMS Performance Ad Market ATTN: Legal Department/General Counsel [email protected]
3. No Assignment. This Agreement, or any interest herein, shall not be assigned by Publisher to another party without the prior express written consent of DMS.
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. Injunctive Relief. Publisher and DMS agree that if there is a breach of this Agreement by either Party, the non-breaching Party shall have remedy in law and/or equity including, but not limited to, appropriate injunctive relief without the necessity of posting a bond or other security or specific performance.
7. 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.
8. Force Majeure. Neither Party shall be held responsible for any delay or failure in performance of this Agreement caused by fire, hurricane, tornado, earthquake, tidal wave, meteor strikes, civil war, Internet brown-outs or black-outs, computer hacking, or acts of terrorists ("Force Majeure") if the effects of such Force Majeure could not have been avoided through the application of reasonable foresight or diligent effort.
9. 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. In this regard, neither Party shall hold itself out contrary to the terms of this provision, and neither Party shall become liable for the representation, act or omission of the other contrary to the provisions hereof.
10. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The Parties hereby agree to submit to the exclusive jurisdiction of the federal or state courts of the State of California located in Los Angeles County for all disputes that arise under or relate to this Agreement.
11. Monetary Amounts. All monetary amounts specified in this Agreement are in United States dollars.
12. Entire Agreement. This Agreement and any subsequent insertion orders are the complete agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces 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 insertion order. This Agreement may only be modified by a written document executed by both Parties. This Agreement was prepared jointly by both Parties and their attorneys. The terms of the Agreement are not to be strictly construed against either Party.
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.
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 clicking "I agree" when prompted on DMS's portal, network.dmsgroup.com.