Online Affiliate Marketing Agreement
AGREEMENT PUBLISHER AGREEMENT (as of 1/1/2014) This Publisher Agreement (the “Publisher Agreement”), is by and between Lexicon Digital Media Group, LLC, a California Limited Liability Company, (“Lexicon Digital Media Group, LLC”) and your company or you individually (“Publisher”) (collectively, the “Parties”), and, together with any applicable Insertion Order (“IO”), shall govern Publisher’s participation in the Lexicon Digital Media Group, LLC Marketing Program (the “Marketing Program”). The Publisher Agreement and any governing IOs may be collectively referred to as the “Agreement.” This Publisher Agreement shall replace any and all prior agreements between the Parties, which, by entering into this Publisher Agreement, are rescinded. 1. DEFINITIONS “Publisher” means the individual or entity defined as “Publisher” above, including all partners, shareholders, officers, directors, members, managers, partners, employees, agents, Publishers, subsidiaries, trustees and independent contractors. “Offer” or “Offers” means any of advertisements, solicitations, promotions or marketing materials of Lexicon Digital Media Group, LLC or its third party advertiser clients. 2. PUBLISHER TERMS, REQUIREMENTS AND STANDARDS a. General. Lexicon Digital Media Group, LLC shall provide Publisher with materials and information that will allow Publisher to distribute Lexicon Digital Media Group, LLC’s Offers. b. Acceptance of Terms. Publisher shall follow all terms, conditions, policies and procedures for an Offer that Publisher distributes as set forth in this Publisher Agreement, an applicable IO or as otherwise communicated to Publisher. This requirement shall include, but not be limited to, the use of approved (1) from and subject lines, (2) email content and/or creatives, and (3) placement and positioning criteria. c. Discretion to Distribute. Subject to the express restrictions herein or in an applicable IO, Publisher shall have the discretion to choose when to distribute an Offer (if at all) and to what extent. Publisher may cease distributing any Offer at any time unless doing so would cause Publisher to violate Section 2(b). d. Purpose and Quality Standard. The express purpose of this Agreement, for Lexicon Digital Media Group, LLC, is that Publisher will generate valid and legitimate leads, sales, registrations or events for Lexicon Digital Media Group, LLC and/or its third party advertisers (as the case may be). Accordingly, to the extent Publisher distributes Lexicon Digital Media Group, LLC’s Offers, it shall perform this Publisher Agreement and any applicable IO in a manner that ensures the generation of legitimate Actions (defined in Section 6 below) to Lexicon Digital Media Group, LLC and/or its third party advertisers. At a minimum, this requires Publisher to refrain from conduct in violation of Section 4. The provisions contained in this paragraph are a condition precedent to Lexicon Digital Media Group, LLC’s payment obligations as set forth in Section 6. e. Suppression. Prior to distributing any Offer via email, Publisher shall download an Offer’s most current suppression list. Publisher shall use the suppression list to remove individuals who have lawfully “opted out” of receiving Offers from a particular advertiser, so that those individuals are excluded from any email distribution by Publisher. Thereafter, at least every seven days, Publisher shall download and use the most current suppression list for an Offer. Publisher shall never use suppression lists for any purpose except to remove email addresses from its distribution lists. Publisher shall take any and all measures necessary to ensure the security and secrecy of any suppression list. f. Unsubscribe Requests. In the event that Publisher receives a request from a consumer to be removed from all future email distributions by Lexicon Digital Media Group, LLC, then Publisher shall provide all information provided by that consumer, including email address and a copy of the consumer’s communication, to Lexicon Digital Media Group, LLC within forty-eight (48) hours of receipt. g. Modification or Termination of an Offer or IO. Publisher shall only distribute the most recent version of an Offer upon notification that Lexicon Digital Media Group, LLC has altered, modified or amended the Offer. Publisher shall immediately cease any and all use of an Offer upon notification that an Offer has been terminated, and cease any and all use of prior versions of an Offer upon notification that an Offer’s creative materials, or from/subject lines, have been modified or altered. Where an alteration or modification to an IO affects the payout rate or permitted distribution dates, such changes shall take effect immediately, and Publisher’s continued distribution of an Offer after such notice shall be deemed acceptance of any such modification or amendment. Lexicon Digital Media Group, LLC may provide notification of any change to an IO or Offer via email, telephone or instant message. h. Rules Governing Display Advertising. Publisher shall not promote any Offers on or through websites, blogs, social media sites or other search/display forums or media, even if permitted by an Offer’s terms and conditions, unless Publisher: (1) discloses any and all such websites prior to promotion (the “Website”); (2) discloses all sites on which Publisher placed links or redirects to the Website, including any representations made on those sites in connection with the link or redirect, prior to promotion; and (3) ensures that any and all redirects and referring URLs are visible and/or made available to Lexicon Digital Media Group, LLC for tracking and compliance purposes; provided, the first two requirements shall not apply if Publisher distributes the Offer on: (1) websites owned/operated by a third party and through a reputable third party ad server, or (2) a third party’s website where the owner/operator is a public company that is traded on the NYSE or NASDAQ. Lexicon Digital Media Group, LLC shall have the right to review Publisher’s Website(s) both before and after promotion of any Offer, and may approve or reject any Website(s) in its sole and absolute discretion. i. Reproduction of Offers. Publisher shall not copy, imitate, or reproduce any of Lexicon Digital Media Group, LLC’s Offers, or the contents of any Offer (such as trademarks or copyrighted materials), except as necessary to carry out its obligations under this Agreement. j. Contact with Third Party Advertisers. With respect to any of Lexicon Digital Media Group, LLC’s third party advertisers, Publisher shall not contact the owner (or its agent) of any such Offer for any reason. Publisher shall direct any questions or comments relating to such an Offer to Lexicon Digital Media Group, LLC. k. Costs of Compliance. In the event Publisher is required, in connection with its performance of this Agreement, to incur any costs in order to comply with any federal or state laws, rules or regulations, then Publisher shall bear such costs at its own expense. l. Sub-Publishers; Prohibition on Network Syndication. Publisher may use Sub-Publishers in connection with its performance of this Agreement, subject to the following: i. Sub-Publishers shall not use any further Sub-Publishers and may not be a network. Network syndication of Lexicon Digital Media Group, LLC Offers is explicitly prohibited unless otherwise stated in writing. ii. Publisher assumes and accepts all responsibility and liability for the acts and omissions of its Sub-Publishers. The acts and omissions of any Sub-Publishers shall be deemed the acts of the Publisher. iii. Nothing contained herein is intended to confer any rights or third party beneficiary status on any Sub-Publishers, and Lexicon Digital Media Group, LLC expressly disclaims any such rights. iv. Publisher shall assign separate sub-IDs and tracking links for each of its Sub-Publishers for compliance and tracking purposes. Lexicon Digital Media Group, LLC shall have the right to terminate (for any reason) any Sub-Publisher from distributing an Offer, and notice of such termination may be communicated to Publisher by Lexicon Digital Media Group, LLC orally or in writing. In the event Lexicon Digital Media Group, LLC terminates any Sub-Publisher, Publisher shall carry out such termination within twenty four (24) hours of Lexicon Digital Media Group, LLC’s notice of termination. 3. LIMITED LICENSE a. General. Publisher is granted a non-exclusive, non-transferable, license to use Lexicon Digital Media Group, LLC’s Offers (including any trademarks or copyrighted material connected thereto) and Proprietary Information for the limited purpose of carrying out its obligations under this Agreement. Publisher shall not sublicense any rights or duties under this Agreement without the express written consent of Lexicon Digital Media Group, LLC. This license shall terminate, and Publisher shall immediately cease any and all use and/or distribution of Lexicon Digital Media Group, LLC’s Offers and Proprietary Information upon the termination of this Agreement b. No Ownership. Nothing in this Agreement, shall transfer the ownership of any intellectual property owned or controlled by Lexicon Digital Media Group, LLC (or licensed to Lexicon Digital Media Group, LLC by its clients) to Publisher, nor grant any right or license other than the limited license stated above. c. Access to Lexicon Digital Media Group, LLC’s Website. Lexicon Digital Media Group, LLC shall provide Publisher with login information in order to access Lexicon Digital Media Group, LLC’s website for the purpose of carrying out its obligations herein. Publisher shall only share or disclose its login information with its internal employees; it shall not share or disclose its login information with any Sub-Publisher, subsidiary, independent contractor or other third party. Publisher shall not attempt to modify, alter, hack, manipulate or otherwise misuse Lexicon Digital Media Group, LLC’s website. Lexicon Digital Media Group, LLC shall be entitled to immediately revoke Publisher’s access to Lexicon Digital Media Group, LLC’s website and terminate this Agreement in the event that Publisher violates this paragraph. 4. PROHIBITED CONDUCT a. Fraud. Publisher shall not distribute or promote any Offer using Fraudulent means. “Fraudulent” means shall include, but not be limited to, the following: i. Creating additional Actions through fraudulent traffic generation techniques such as pre-populated forms, bots, scripts or other, similar techniques. ii. “Impression spam,” which is the frequent or automated searching of a search term, in connection with paid search campaigns, in order to reduce a competitor’s click-through rates on their advertisements. iii. Any other form, method, program, script or technique that artificially inflates the number of Actions generated for an Offer, including the use of gift cards. b. Incentivized Actions. Publisher shall not distribute any Offer on or through an Incentivized website, or using Incentivized means, unless explicitly allowed by the Offer’s terms and conditions. “Incentivized” means that a host website or media offers incentives to users, including, but not limited to, cash, points, prizes, gift cards or other thing of value, if the user engages in conduct that would generate an Action for an Offer. c. Unapproved or Unlawful Websites. Publisher shall not distribute any on or through a Website that fails to comply with the criteria set forth in Section 2(h), or include any unlawful content on its Website, including, but not limited to, false, misleading or deceptive representations. d. Unapproved Alterations to Offers. Publisher shall not alter any Offer, including the text, pictures, from or subject lines, graphics, sound, video, programming code and other data used to comprise an Offer unless approved in writing by Lexicon Digital Media Group, LLC. In the absence of written approval by Lexicon Digital Media Group, LLC, any alteration by Publisher shall invalidate any Action generated from the use of the altered Offer, thereby forfeiting Publisher’s right to payment that might otherwise exist e. Opt-Out Links and Physical Address. Publisher shall only use opt-out links and physical addresses in an email advertisement that are provided by Lexicon Digital Media Group, LLC and/or set forth in an Offer’s terms, conditions, policies or procedures. Publisher shall not include any alternative or additional opt-out links or physical addresses in an email, including, but not limited to, an opt-out link or physical address of Publisher, unless authorized in writing by Lexicon Digital Media Group, LLC. f. Unlawful Conduct. Publisher’s performance of this Agreement shall comply with all applicable laws, rules and regulations, whether federal or state; any and all United States treaties; and the laws of any nation that has reciprocal treaty rights with the United States. Without limiting the foregoing, Publisher shall not use, in connection with its performance of this Agreement, any third party’s trademark, publicity rights, or other intellectual property in any From/Subject line, domain name, website content, email creative, or as a keyword. g. Unlawful Use of Suppression Lists. Publisher shall not use any suppression list for any purpose other than the removal of consumer email addresses from its distribution lists. Publisher shall never use any suppression list, or the information contained therein, for the purpose of distributing a commercial email advertisement, solicitation or promotion. h. Use of Name or Intellectual Property of Lexicon Digital Media Group, LLC or Its Clients. i. Publisher shall not send any emails using or including the name Lexicon Digital Media Group, LLC, Lexicon DMG, or any link to a Lexicon Digital Media Group, LLC website, unless such use is expressly required to comply with an Offer’s terms and conditions or is part of the Lexicon Digital Media Group, LLC approved creative materials. Publisher shall not send any emails using Lexicon Digital Media Group, LLC or Lexicon DMG as the identified sender, or in the from or subject line of any email. ii. Publisher shall not use Lexicon Digital Media Group, LLC’s name or any portion of the name as part of any business entity name, trade name or internet domain, with any prefix, suffix or other modifying words, terms, designs or symbols or in any modified form, without the prior written consent of Lexicon Digital Media Group, LLC. iii. Publisher shall not use Lexicon Digital Media Group, LLC’s trademarks, service marks, trade dress, copyrights or other intellectual property without the prior written consent of Lexicon Digital Media Group, LLC. iv. Publisher shall not use the trademarks, service marks, trade dress, copyrights or other intellectual property of Lexicon Digital Media Group, LLC’s clients, including, but not limited to The Paleo Secret. Publisher shall not register or use any internet domain or sending domain using the name (in whole or in part, including any derivations) of any of Lexicon Digital Media Group, LLC’s clients or third party advertisers, unless such use is required or permitted in the Offer’s terms and conditions, as reflected in the applicable IO. i. Miscellaneous Prohibitions. Publisher shall not promote any Offer using any of the following explicitly prohibited techniques or methods: i. A website that solely contains a list of links or advertisements; ii. A website that only contains an Offer; iii. A website that is not fully functional (i.e. no “under construction” sites or sections); iv. A website that includes spawning process pop-ups or that generates or creates multiple pop-up windows; v. The use of third party websites’ internal communications systems, including, but not limited to, internal email (e.g. myspace.com or facebook.com email), bulletin boards, chat rooms, Craig’s List (or similar websites), or comments; vi. Associating or linking an Offer to a website or content that includes any of the following: (i) racial, ethnic, gender, age, religious, political, or sexual orientation discrimination; (ii) investment or business opportunities or advice prohibited by law; (iii) obscenity, profanity, pornography, violence or adult content; (iv) defamatory, abusive or threatening language, images or content; (v) promotion of illegal substances or narcotics, gambling, or other criminal conduct such as bomb building or counterfeiting; (vi) pirating software or media; (vii) hacking, spoofing, phishing or phreaking; or (viii) any person or entity associated with fraud, felonious crime, or unethical business practices. vii. Spoofing, redirecting or trafficking from or to websites containing adult content. viii. Use of spyware, adware or any other form of malware that generates new web browser windows. 5. COMPLIANCE a. General. Lexicon Digital Media Group, LLC monitors Publisher’s performance of this Agreement in order to ensure that Publisher and its Sub-Publishers comply with all laws, rules and regulations, as well as to ensure compliance with this Agreement. b. Test Emails. Prior to distributing an Offer through email messages, Publisher shall send a test or sample email to Lexicon Digital Media Group, LLC at an email address or addresses provided by Lexicon Digital Media Group, LLC. c. Duty to Cooperate. Publisher shall cooperate with Lexicon Digital Media Group, LLC in the event that Lexicon Digital Media Group, LLC requests any information that is related to Publisher’s compliance with this Agreement or any law, rule or regulation, including making available any and all employees, agents, Sub-Publishers, subsidiaries or independent contractors whose statements and/or knowledge are necessary to provide the information requested. Publisher shall provide requested information (or make available the appropriate individual) within five (5) business days of Lexicon Digital Media Group, LLC’s request unless a different timeframe provided by Lexicon Digital Media Group, LLC (which may be greater than or less than five (5) days); provided, however, that Publisher shall provide a consumer’s opt-in information to Lexicon Digital Media Group, LLC within one (1) business day of any request. d. Notice and Consent to Monitoring. Publisher acknowledges and consents to Lexicon Digital Media Group, LLC using any means to monitor Publisher’s compliance with this Agreement and all applicable laws, rules and regulations, which may include the use of “seed” accounts and third party services such as Lashback, UnsubCentral or Email Analyst. 6. PAYMENT a. General. Lexicon Digital Media Group, LLC shall pay Publisher for each Action that it generates. The payout amount per Action, and the criteria setting forth what constitutes an Action, shall be defined in the applicable IO. Unless the IO specifies otherwise, Payments shall be made to Publisher within seven (30) days of the end of the calendar month in which Publisher generated any Actions. Additionally, payments to Publisher shall be governed by the following: i. Payments to Publisher shall be made by check, which shall be delivered to the address that Publisher provides to Lexicon Digital Media Group, LLC in connection with its application or registration, until Lexicon Digital Media Group, LLC receives written notice otherwise. However, if the amount of a payment exceeds $10,000 U.S., then payment shall be made via ACH or wire transfer. ii. If any monthly payment due is less than $50.00 U.S. (the “Payment Floor”), then Lexicon Digital Media Group, LLC shall hold any such payments (interest free) until the cumulative amount due to Publisher, from all unpaid amounts, exceeds the Payment Floor, at which time all such monies shall be paid as set forth in this Section 6. Provided, the terms in this paragraph shall not apply following termination of this Agreement, where the amounts due to Publisher represent a final payment. b. Exclusions. No payments shall be made to Publisher, and Publisher agrees to forfeit any such payments, if Lexicon Digital Media Group, LLC determines, in its reasonable discretion, that any Action is: i. Incomplete; ii. Contains duplicate information in any respect; iii. Made by a person residing outside of the United States or Puerto Rico (unless expressly allowed by the Offer’s terms); iv. Made by a person under the age of 18 (unless expressly allowed by the Offers terms); v. The product of an Offer containing an unapproved alteration; vi. Incentivized, unless the offer is an incentivized offer; or vii. Fraudulent, involves the use of Prohibited Conduct or is otherwise invalid. To the extent that excluded actions are limited to one or more Sub-Publishers, then Publisher’s forfeiture of payment shall be limited to such Sub-Publishers. c. Tracking. Lexicon Digital Media Group, LLC utilizes a tracking system that will log consumer responses and calculate the number of Actions. The information logged and reported by Lexicon Digital Media Group, LLC’s tracking system will be used to compute the amounts owed to Publisher. In the event that Lexicon Digital Media Group, LLC’s tracking system fails, then Lexicon Digital Media Group, LLC shall pay Publisher, for the period of the failure, an amount equal to the actual number of valid Actions (assuming such calculation can be made reliably from independent sources). If Lexicon Digital Media Group, LLC is unable to reliably calculate the number of actual Actions, it shall calculate Publisher’s Actions for the downtime as follows: Lexicon Digital Media Group, LLC shall multiply the duration of the failure by the average number of daily Actions generated and tracked by Publisher over the thirty (30) day period immediately preceding the beginning of the downtime; duration shall be calculated, where it involves less than a full day, as a percentage of a full day, where a full day is from 9:00 a.m. PST to 5:00 p.m. PST. d. W-9. Lexicon Digital Media Group, LLC’s payment obligations, as set forth herein, are contingent upon it receiving a W-9, or equivalent documentation, from Publisher. e. Audit. Lexicon Digital Media Group, LLC’s calculation of the number of Actions shall be final and binding, subject to any adjustments for any violation of this Agreement, including, but not limited to, acts of Prohibited Conduct. Any questions or comments about Lexicon Digital Media Group, LLC’s calculation of the number of Actions must be submitted in writing within fifteen (15) days of receipt of payment, otherwise all claims relating to the accuracy of Lexicon Digital Media Group, LLC’s calculations shall be expressly waived. f. Chargeback and Offset. Lexicon Digital Media Group, LLC shall have the right to chargeback and recover any monthly payment already made to Publisher where Lexicon Digital Media Group, LLC discovers or determines, after paying Publisher, that: (i) any Actions for which Publisher was already paid were generated through Fraud or Prohibited Conduct; or (ii) a third party advertiser of an Offer failed to pay Lexicon Digital Media Group, LLC for any reason (provided, however, that Lexicon Digital Media Group, LLC shall only be permitted to chargeback and recover an amount equal to what it paid Publisher for Actions generated for that Offer); or (iii) a third party advertiser refused to pay Lexicon Digital Media Group, LLC and, in Lexicon Digital Media Group, LLC’s reasonable discretion, the refusal was attributable to Publisher (provided, however, that Lexicon Digital Media Group, LLC shall only be permitted to chargeback and recover an amount equal to what it paid Publisher for Actions generated for that Offer). Lexicon Digital Media Group, LLC shall further have the right to offset against outstanding or future payments any (1) chargebacks (as set forth in this paragraph), or (2) costs, damages, expenses, fees, fines or other losses that Lexicon Digital Media Group, LLC actually incurs or may incur as a result of: (i) Publisher’s breach of any provision in this Agreement (including, but not limited to, Prohibited Conduct or submission of fraudulent Actions); (ii) any action by Publisher that causes Lexicon Digital Media Group, LLC to breach an agreement with a third party; or (iii) Publisher’s violation of any law, rule or regulation. 7. TERM AND TERMINATION a. Term. This Agreement shall commence upon Publisher’s indication of acceptance of this Publisher Agreement and remain in full effect until terminated. Either Party may terminate this Agreement upon three (3) days written notice. b. Termination. Either Party may immediately terminate this Agreement upon the occurrence of any of the following: i. A violation of any law, rule or regulation by the non-terminating Party that arises from or relates to its performance of this Agreement, including, but not limited to, a violation of the CAN-SPAM Act of 2003; ii. A material breach of this Agreement by the non-terminating Party, which shall expressly include any breach of Sections 4, 5, 8 or 9; iii. The dissolution or insolvency of either Party; or iv. A Party petitions for bankruptcy or seeks other relief under bankruptcy laws. c. Notice and Effect. Notice of termination shall be provided in writing and will take effect on the date specified in the notice, subject to any minimum notice requirements set forth above. Any payments owed to Publisher shall be paid consistent with the provisions in Section 6. 8. REPRESENTATIONS AND WARRANTIES a. Authority. Publisher represents and warrants that it has full power and authority to enter into this Publisher Agreement. b. Lawful Purpose. Both Parties represent and warrant that their execution, delivery and performance of this Agreement will not violate any applicable law, statute or governmental regulation, nor will it violate any contract or agreement with any third party. c. Licenses. Both Parties represent and warranty that they have full power and authority to grant the licenses granted herein. d. No Guarantees. Neither Party represents, warrants or makes any specific or implied promises as to the outcome of or income generated by any Offer. e. Legal Compliance. Publisher represents and warrants that it will comply with all applicable laws, rules and regulations, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), and acts amendatory thereto or rules promulgated thereunder, and any state Child Protection Registry Acts. f. Consumer Consent. Publisher represents and warrants that it will only distribute Offers by email to consumers who have provided affirmative consent to receive email advertisements from Publisher or third parties such as Publisher. g. Suppression. Publisher represents and warrants that it will timely obtain and use all Offer suppression lists, and that it shall not use any suppression for any purpose other than the removal of email addresses of consumers who have opted-out of receiving future advertisements from a sender (as defined by the CAN-SPAM Act of 2003). h. Use of Approved Content Only. Publisher represents and warrants that it will only use approved Offer content, including approved from and subject lines, and shall not alter or modify any Offer content without the express written consent of Lexicon Digital Media Group, LLC. i. No Controversial or Inappropriate Content or Links. Publisher represents and warrants that it will not promote any Offer in an email or on a Website, or linked to or from an email or Website, that contains any pornographic, obscene, discriminatory or political content, or that includes content relating to software pirating, hacking or other forms of on-line fraud. j. No Illegal Content or Links. Publisher represents and warrants that it will not promote any Offer in an email or on a Website, or linked to or from an email or Website, that contains or promotes illegal activities, including, but not limited to, gambling, illegal narcotics, prostitution, bomb building or counterfeiting. 9. PROPRIETARY INFORMATION, TRADE SECRETS AND NON-SOLICITATION a. Definition. “Confidential Information” shall mean any confidential, proprietary and/or trade secret information concerning Lexicon Digital Media Group, LLC, its parent, subsidiaries, Publishers, and acquired businesses, that Publisher, under the circumstances, should reasonably understand as being confidential and/or proprietary. It shall include, but not be limited to, Lexicon Digital Media Group, LLC’s relationship or contract terms with advertisers, third party publishers, customers, consumers, merchants, vendors, suppliers and agents; the terms of this Agreement and any IO; pricing policies, including the payout rates in any IO; programs, software, scripts or technology; the identities, contact information and purchasing patterns of customers, consumers, merchants, vendors, suppliers and agents; methods of operation; proprietary computer programs or scripts; sales, profit, cost and other financial information; market information; business strategies; employee personnel information; technical processes and designs; information processing standards and practices; customer service and service quality standards; Trade Secrets (as defined by California Civil Code § 3426.1); and confidential information concerning or relating to Lexicon Digital Media Group, LLC’s employees, customers, merchants, vendors and suppliers. Confidential Information shall not include (i) information that is publicly known, (ii) information that Publisher independently derived without the use of any Confidential Information, or (iii) information that Publisher obtained from a third party not under a duty of confidentiality to Lexicon Digital Media Group, LLC. b. Duty of Confidentiality. Publisher recognizes and acknowledges that it has acquired and/or will acquire Confidential Information from and/or concerning Lexicon Digital Media Group, LLC. Publisher shall not, during or after the Term, use or disclose any Confidential Information for any reason or purpose whatsoever, directly or indirectly, except as required to perform its duties hereunder or as required by law. In the event of termination of this Agreement, whether voluntary or involuntary, Publisher shall deliver to Lexicon Digital Media Group, LLC all documents and data pertaining to the Confidential Information upon the request of Lexicon Digital Media Group, LLC. Publisher will not, at any time during or after the term of this Agreement, use, copy, publish, summarize, or remove from the Lexicon Digital Media Group, LLC’s premises any Confidential Information, except, during the term of this Agreement, to the extent necessary to carry out its duties and responsibilities under this Agreement. c. Protection of Trade Secrets/Nonsolicitation. Publisher hereby agrees that during the term of this Agreement and until the Confidential Information ceases being Confidential Information, it (i) will take commercially reasonable steps to ensure the security and secrecy of any of Lexicon Digital Media Group, LLC’s Confidential Information, (ii) will only disclose Lexicon Digital Media Group, LLC’s Confidential Information to its employees or agent who have a need to know of such information, and (iii) will not, using or relying on any Confidential Information, directly or indirectly, call on, induce or solicit, on behalf of itself or any third party, any current or prospective publisher, customer, merchant, vendor or supplier of Lexicon Digital Media Group, LLC. In addition, Publisher will not, for a period of two (2) years following the termination of this Agreement, directly or indirectly, as an agent, executive, consultant, representative, stockholder, manager, partner, or in any other capacity, recruit or solicit any person who is at that time employed or engaged by Lexicon Digital Media Group, LLC, to terminate his or her relationship with Lexicon Digital Media Group, LLC, or otherwise interfere with the relationship between Lexicon Digital Media Group, LLC and its employees. d. Reasonableness of Covenants. Publisher acknowledges that the duration and restrictions set forth in Section 9 are reasonable in scope. If, at any time, the provisions of Section 9 shall be finally adjudicated to be invalid or unenforceable by a court of competent jurisdiction, the Parties hereby agree that the court making this determination will have the power to reduce the scope, duration, or area of the term or provision to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and that this Agreement will be enforceable as so modified. e. Noncircumvention. Publisher shall not, for a period of six (6) months following termination of this Agreement, directly or indirectly, as an agent, executive, consultant, representative, stockholder, manager, partner, or in any other capacity, conduct any business with any of Lexicon Digital Media Group, LLC’s advertisers for whom Publisher distributed or marketed an Offer in connection with this Agreement, whether or not the proposed business was initiated by Publisher or the advertiser. Notwithstanding the foregoing, nothing contained herein shall limit Publisher’s obligations contained in Section 9(a)-(d). 10. LIMITATION OF LIABILITY; DISCLAIMER; LIMITED REMEDY a. Limitation of Liability; Time for Action. In no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Publisher Agreement, even if such party has been advised of the possibility of such damages. Any cause of action arising from or in connection with this Agreement shall be asserted within one (1) year of the date upon which such cause of action accrued, or the date upon which the complaining party should have reasonably discovered the existence of such cause of action, whichever is later. b. Disclaimer. The information, content and services on Lexicon Digital Media Group, LLC’s website are provided on an “as is” basis, without warranty. Except as expressly provided herein, both Parties disclaim any and all representations and warranties, including the implied warranties of merchantability or fitness for a particular purpose. Publisher may use Lexicon Digital Media Group, LLC’s website and promote Offers at its own risk. Lexicon Digital Media Group, LLC does not represent nor warrant that the information on its website or provided by Lexicon Digital Media Group, LLC is accurate, complete or current. c. Limited Remedy. Excluding claims for Indemnity as set forth in Section 11, the Parties agree that the maximum liability that either shall incur to the other, in the event that either party is found to have damaged the other, shall not exceed the sum of all payments made by Lexicon Digital Media Group, LLC to Publisher during the six (6) month period immediately preceding the acts or omissions that caused the liability. 11. INDEMNITY Both Parties agrees to indemnify and hold the other Party and its members, officers, directors, employees and agents (collectively, the “Indemnitees”) harmless from and defend each such Indemnitee against any damages, liabilities, losses, taxes, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature whatsoever that are or may be incurred to a third party, which may be sustained or suffered by an Indemnitee in connection with any present or future threatened, pending or contemplated investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, to which any such Indemnitee is or was a party or is threatened to be made a party, and that arises from or is related to this Agreement. 12. MISCELLANEOUS a. Assignment. Publisher may not assign any of its rights hereunder without the prior written consent of Lexicon Digital Media Group, LLC, which may be withheld for any reason. Lexicon Digital Media Group, LLC shall have the right to assign or transfer the Agreement and its obligations hereunder to any successor-in-interest by way of sale, merger, consolidation, reorganization, or restructuring. b. Waiver. No delay or omission by either Party hereto in exercising any right, power or privilege hereunder shall impair such right, power or privilege, nor shall any single or partial exercise of any such right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege. c. Force Majeure. Unless expressly provided otherwise in this Publisher Agreement, either Party shall be excused from any delay or failure in performance caused by reason of any occurrence or contingency beyond its reasonable control, including, without limitation, acts of God, fire, flood, war, civil disturbance, power outage, sabotage, and accident or dispute with organize labor. The time for performance shall be extended for a period equal to the period that the force majeure event prevented performance, but the non-delaying party may terminate this Agreement in the event the delay continues for more than sixty (60) consecutive calendar days. d. Severability. To the extent any provision of this Agreement or application of it to any person, place, or circumstance shall be determined to be invalid, unlawful or otherwise unenforceable, in whole or in part, the remainder of this Agreement and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible. The Parties agree that this Agreement shall be given the construction which renders its provisions valid and enforceable to the maximum extent (not exceeding its express terms) possible under applicable law. e. Independent Contractors. The Parties to the Agreement are independent contractors. Neither party is an agent, representative, partner or employee of the other party. Neither party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party. The Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either party. f. Authorship of the Agreement. Both Parties to this Agreement will be considered the Agreement’s author. Any ambiguities that exist shall be interpreted equally between the parties and shall not be construed against either party on account that it was the drafter. g. Survival of Obligations. Termination of this Agreement shall not affect Publisher’s continuing obligations as set forth in this Agreement, including under Section 9 of this Agreement. h. Cumulative Rights. The rights and remedies provided herein are cumulative, and the exercise of any right or remedy, whether pursuant hereto, to any other agreement, or to law, shall not preclude or waive the right to exercise any or all other rights and remedies. i. Attorneys’ Fees and Costs. In the event that a dispute arises between the Parties that relates to or arises out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs. j. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California without respect to choice of law rules and the Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Los Angeles County, California for such purpose. k. Electronic Signature. This Publisher Agreement shall be deemed accepted by Publisher upon its electronic assent to these terms, which Publisher shall make on or through Lexicon Digital Media Group, LLC’s website. l. Rescission of Prior Agreements. All prior agreements or terms and conditions between or governing the Parties, with respect to the subject matter of this Publisher Agreement, are hereby mutually rescinded and replaced by this Publisher Agreement. Any terms in those prior agreements or terms and conditions requiring written notice of modification or termination are hereby expressly waived. m. Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter of this Agreement, and supersedes all prior agreements, negotiations and understandings relating to the subject matter of this Agreement, including specifically, any oral or written agreements between Publisher and Lexicon Digital Media Group, LLC, its parent and/or subsidiaries. n. Modification. Lexicon Digital Media Group, LLC reserves the right to amend or modify the terms of this Publisher Agreement from time to time. Lexicon Digital Media Group, LLC shall post such amended or modified terms on its website and/or they shall be made available to Publisher upon request. Publisher’s continued participation in the Marketing Program shall be deemed acceptance of any modifications or amendments. No other amendments or modifications shall be effective unless in writing and signed by Publisher and an authorized signatory of Lexicon Digital Media Group, LLC. o. Conflict with IO. In the event of a conflict between the terms in this Publisher Agreement and any IO, the terms of this Publisher Agreement shall supersede any conflicting terms in the IO, and the terms contained in this Publisher Agreement shall govern, unless the IO contains the following language (in all caps as provided herein), which shall immediately follow the conflicting term in the IO: “THE PARTIES EXPRESSLY INTEND FOR THE PRECEDING TERM TO SUPERCEDE ANY CONFLICTING TERMS IN THE PUBLISHER AGREEMENT.” p. Notice. Any notice under this Agreement shall be in writing and delivered by personal delivery, express courier, confirmed facsimile, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with express courier, upon confirmation of receipt of facsimile, or five (5) days after deposit in the mail. Notices shall be sent to Publisher at the address and fax number provided by Publisher during registration, or to such other address or fax number as it specifies in a writing delivered to Lexicon Digital Media Group, LLC pursuant to this paragraph. Notice shall be given to Lexicon Digital Media Group, LLC at its address set forth below, or to such other address as it specifies in a writing delivered to Publisher pursuant to paragraph: Lexicon Digital Media Group, LLC 15559 Union Ave. Suite 120 Los Gatos, CA. 95032 q. Publicity. Neither Party will create, publish, or distribute, directly or indirectly, any written material that makes reference to the other Party or its products or services, without the express written consent of the other Party. Exhibit 1 – Email Advertising This Exhibit 1 contains additional terms, conditions and criteria that Publisher must comply with in connection with any and all Offers distributed through an email message. Your compliance with the terms in this Exhibit 1 are essential. Please review. Accurate Identification of Entities Who Transmit Offers By Email Messages: Any Offer or campaign distributed by email message must be readily traceable to the entity who transmits the email message. If you are a mailer, then the message must be readily traceable to your company. If you are a network, then the message must be readily traceable to your sub-publishers who transmit email messages. An email message is readily traceable to the entity who transmits it if it complies with one of the foregoing: 1) The originating or sending domain used to transmit the email message is openly and accurately registered to the entity who transmitted the message, and may be discovered through publicly available resources such as a WHOIS database. Registration information that conceals or attempts to conceal the identity or contact information of the entity who sends the email message is not open or accurate. Privately registered domains are not openly registered. 2) The entity who transmits the email message discloses its name and contact information within the body of the email message itself. The identifying information must also be accurate. Information that conceals or attempts to conceal the identity or contact information of the entity who sent the message is not compliant. Identifying information may be combined with a “publisher opt-out.” An example of an acceptable disclosure is as follows: “This email message was transmitted by [Entity’s Name]. [Entity] may be contacted at [address] or [phone number]. If you no longer wish to receive email messages from [Entity], click here.” 3) The originating or sending domain clearly identifies the entity who transmitted the email message and is the same domain used as the entity’s primary internet website. For example, if the email message was sent by ABC Company, then an originating domain of abccompany.com, which is also ABC Company’s principal business website, is acceptable.