This MMADs Marketing Publisher Agreement (“Publisher Agreement“) is entered into by and between MMADs Marketing, Inc. (“MMADs“), and you (“Publisher“) on the date that Publisher clicks to accept this Agreement by and through the Platform (as defined below) (the “Effective Date“). This Publisher Agreement sets forth the parties’ respective rights and obligations concerning Publisher’s distribution of certain Creative (as defined below), via e-mail (“Publisher E-mail“), on behalf of MMADs’s third-party advertising partners (“Advertisers“) on a cost per thousand impressions (“CPM“) basis. This Publisher Agreement shall incorporate the terms, conditions, and policies associated with MMADs’s proprietary online Platform (collectively, “Policies,” and together with this Publisher Agreement, the “Agreement“), which enables Publishers to interface with prospective Advertisers in connection with the e-mail marketing campaigns contemplated hereunder (“Campaigns“).
1. Platform; Services.
Pursuant to the terms of the Agreement, MMADs grants Publisher access to MMADs’s proprietary Platform. Through the use of Platform, Publisher can post information pertaining to its proprietary e-mail database(s) (collectively, “Publisher Database“), as well as the CPM rates that Publisher charges to prospective Advertisers in connection with Campaigns. For purposes of the Agreement, “Platform” means, collectively, all software programs, applications, technology, features, functionality, documentation, and content used in connection with the Publisher/Advertiser platform, including the web-based administration services and interface, as may be modified in accordance with the Agreement from time-to-time. In connection with the Campaigns, Publisher may send Creative via e-mail (“Publisher E-mail“) to individuals whose records are contained within the Publisher Database (“Consumers“). Where an Advertiser selects Publisher for participation in a given Campaign, Publisher may distribute Publisher E-mail on behalf of that Advertiser in connection with the applicable Campaign (the “Services“). All Publisher E-mail disseminated by Publisher pursuant to the Agreement must be transmitted to e-mail addresses contained within the Publisher Database. Any attempt to broker third party agreements to deliver Publisher E-mail on behalf of Advertisers without first obtaining MMADs’s written authorization is strictly prohibited and, in addition to all other legal and equitable remedies available to MMADs, shall be grounds for the immediate termination of the Agreement and cancellation of applicable CPM revenue upon written notice (with e-mail sufficing as written notice).
2. Publisher Database.
Publisher represents and warrants that: (a) the Publisher Database consists of e-mail addresses of Consumers who are eighteen (18) years of age or older; (b) the Publisher Database was collected from owned or affiliated websites, with the Consent (as defined below) of the Consumers associated with the addresses contained therein, and was collected in compliance with the applicable websites’ privacy policies and such Consent and privacy policies specifically allow for Publisher to utilize such Publisher Database to send marketing messages via e-mail from unaffiliated third parties, as contemplated hereunder; (c) the Publisher Database was obtained, collected and compiled, and will continue to be maintained by Publisher: (i) with the consent, as defined under the EU General Data Protection Regulation (“GDPR“), of the Consumers that will receive commercial e-mail from Publisher (“GDPR Consent“); (ii) with the “Affirmative Consent,” as defined under the CAN-SPAM Act of 2003, as amended (“CAN-SPAM“), of the Consumers that will receive commercial e-mail from Publisher; and (iii) with the consent of the Consumers that will receive “Commercial E-Mail Messages,” as defined under Canada’s Anti-Spam Legislation (“CASL“) (“CASL Consent,” and together with the GDPR Consent and Affirmative Consent, the “Consent“); (ii) in compliance with all applicable laws, rules and/or regulations including, without limitation, GDPR, CAN-SPAM, CASL, the Michigan Children’s Protection Registry (https://www.protectmichild.com/senders/), the Utah Child Protection Registry (https://www.registrycompliance.com/apply.html), the Children’s Online Privacy Protection Act, and the Federal Trade Commission’s report entitled, “Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers,” as amended (“FTC Privacy Report“) (collectively, “Applicable Law“); and (iii) without employing e-mail address harvesting, dictionary attacks and/or any other deceptive or illegal act or practice. Publisher shall maintain records evidencing Consent from each Consumer in the Publisher Database including, without limitation, applicable IP addresses and/or time/date stamps and will supply such records to MMADs upon request at any time during the Term, and for a period of two (2) years thereafter; and (d) the Publisher Database does not include records of any person who has unsubscribed from the Publisher Database. Without limiting the foregoing, Publisher shall ensure that the following shall fully comply with the GDPR: (i) Publisher’s internal security policies and procedures, encryption technology, personnel oversight and networks associated with the personal information of Consumers that it collects, stores, maintains, utilizes and/or transfers (collectively, “Consumer Data“); (ii) Publisher’s record-keeping practices in connection with Consumer Data obtained, stored, utilized and/or transferred to third parties by Publisher; (iii) Publisher’s procedures for preventing a breach of Consumer Data and responding in the event that a Consumer Data breach occurs; (iv) Publisher’s policies and procedures related to cross-border transfers of personal information; and (v) Publisher’s policies for honoring the right of consumers to access, modify and delete their respective Consumer Data records, including Publisher’s policies regarding compelling third parties with which Publisher has shared Consumer Data to honor same. Publisher will require each party with which Publisher shares Consumer Data to represent and warrant that each such third party will fully comply with the provisions of Section 2(i) – Section 2(v) hereof.
For purposes of the Agreement, any reference to Publisher shall include any and all in-house and/or third-party marketing agents, partners, affiliates and/or publishers providing services to and/or on behalf of Publisher in connection with the Services contemplated hereunder (collectively, “Sub-Marketers“). Publisher shall remain, at all times, fully liable for any and all acts and/or omissions of its Sub-Marketers, and for ensuring that each such Sub-Marketer complies with any and all obligations, restrictions, and other terms applicable to Publisher under the Agreement. MMADs may terminate its authorization for the Publisher’s use of one or more Sub-Marketers at any time and for any reason.
MMADs shall pay Publisher the amount earned based on the applicable CPM rate for each active Campaign out of amounts actually received by MMADs from the applicable Advertiser, less a thirty percent (30%) Platform fee (unless a different Platform fee is set forth in the Policies). MMADs shall have no obligation to pay Publisher any prospective CPM revenue for which MMADs does not receive the corresponding payment from the applicable Advertiser. The CPM revenue shall be determined based on MMADs’s tracking and reporting, which determination shall be final and binding upon the parties. Publisher agrees that it shall not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by MMADs to be used in connection with any Creative. Unless set forth to the contrary in the Policies, MMADs shall make CPM revenue payments within thirty (30) days of the end of the month in which it receives payment from the Advertiser for the subject-generated CPM revenue. Publisher agrees to pay all sales, use, excise and other taxes which may be levied upon either party in connection with the Agreement, except for taxes on MMADs’s income. MMADs shall have no obligation to pay Publisher for CPM revenue that was generated in breach of the Agreement.
6. Platform Availability.
Publisher understands that, on occasion, the Platform may be inaccessible, unavailable or otherwise inoperable for any reason including, but not limited to, the following: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs; and/or (c) causes beyond MMADs’s control or which are not reasonably foreseeable by MMADs including, but not limited to, interruption or failure of telecommunications or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Publisher agrees that MMADs has no control over, and shall not be liable for, the availability of the Platform on a continuous or uninterrupted basis. Further, Publisher understands and agrees that MMADs’s failure to provide access to the Platform because of technical difficulties shall not be considered a breach and/or failure to meet its obligations under the Agreement.
7. Ownership of Platform.
MMADs owns all rights, titles and interests in and to the Platform including, without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. MMADs grants Publisher a limited, revocable, royalty-free, non-exclusive, non-transferable license to use the Platform for the Term only. Publisher acknowledges that the rights granted under the Agreement do not provide Publisher with title to, or ownership in, the Platform, but only a right to use the Platform subject to and under the terms and conditions of the Agreement. All rights not expressly granted to Publisher hereunder are reserved by MMADs. Publisher may not, and may not knowingly permit any third party to: (a) copy, reproduce, modify, translate, prepare derivative works of, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Platform; or (b) use, evaluate or view the Platform for the purpose of designing or creating a product or service competitive with/to MMADs’s products or services.
8. Suppression Lists.
From time to time, MMADs may provide Publisher with a Suppression List (as defined below) in an anonymous, encrypted format using a designated encryption program (“Encryption Program“). With respect to any suppression list generated by Publisher hereunder, or provided to Publisher by MMADs (at MMADs’s sole discretion) and encrypted using the applicable Encryption Program (collectively, the “Suppression List“), Publisher shall encrypt its Publisher Database using the same Encryption Program and: (a) use such Suppression List solely for the suppression purposes set forth herein, even after any termination of the Agreement; (b) regularly use such Suppression List to remove any and all e-mail addresses contained therein from the receipt of future commercial e-mail messages; (c) not retain a copy of any Suppression List following termination of the Agreement; (d) not use any Suppression List for purposes of e-mail appending in any manner whatsoever; (e) hold any Suppression List made available by MMADs in trust and confidence; and (f) not disclose any Suppression List made available by MMADs to any Sub-Marketer, 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 the Agreement. Publisher further agrees and acknowledges that: (i) 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 (ii) 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. Without limiting the foregoing, where MMADs obtains a request from any Consumer for deletion from the Publisher Database, Publisher shall delete any and all personal information related to such Consumer within three (3) business days of receipt of such request from MMADs.
9. Campaign Tracking
From time to time, MMADs campaigns will include tracking pixels, cookies (a small text file containing a string of alphanumeric characters and data), local storage objects, and/or similar technologies to help our customers personalize content and target unique audiences. The information collected may vary but generally speaking, includes event data (for example, whether a link is clicked or not), user agent data (basic device information, such as browser or operating system version), and similar technologies and usage information. This data may be derived from the email service providers of MMADs publishers, the in-browser actions of website visitors or email subscribers (clicks, etc), and the like. This information is stored, encrypted and any personally identifiable information removed. We also use third-party service providers to assist us in providing our services and may transfer encrypted non-personally identifiable information to these companies for storage and processing. We provide the option for publishers or advertisers to opt-out of third-party tracking for their MMADs campaigns. Simply contact us ([email protected]) and we can make this modification to your MMADs account.
The Agreement shall commence on the Effective Date and continue for a period of twelve (12) months (“Initial Term“). Thereafter, the Agreement shall automatically renew on a month-to-month basis (the Initial Term, together with each such monthly renewal, the “Term“). Either party may terminate the Agreement at any time during the Term, with or without cause, upon five (15) business days prior written notice to the other party. Either party may terminate the Agreement immediately upon written notice if the other party materially breaches the Agreement.
11. Representations and Warranties.
Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the acceptance of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when accepted and delivered, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms; and (d) its marketing activities will neither infringe upon any copyright, trademark, U.S. patent or any other third party right, nor knowingly violate any Applicable Law or regulation.
Publisher agrees that, at all times during the Term, it shall maintain accurate books and records relating to its Services provided under the Agreement, as well as Publisher’s compliance with Applicable Law and the terms of the Agreement (collectively, the “Audit Items“). Publisher agrees that MMADs, or any designee of MMADs 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 MMADs’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 MMADs uncovers any material misconduct associated with Publisher’s Services hereunder, then the audit shall be at the sole cost and expense of Publisher.
During the Term, and until such time as the “Confidential Information” (as defined below) is no longer protectable under applicable law, neither party will use or disclose any “Confidential Information” of the other party except as specifically contemplated herein. “Confidential Information” means information that: (a) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, MMADs’s Confidential Information shall include, without limitation, all aspects of the Platform and MMADs’s Suppression Lists. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this Section 15 by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party’s Confidential Information to the disclosing party.
15. Disclaimer of Warranties.
THE PLATFORM, CREATIVE, SUPPRESSION LISTS AND CPM REVENUE TRACKING TECHNOLOGY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE PLATFORM, CREATIVE, SUPPRESSION LISTS AND CPM REVENUE TRACKING TECHNOLOGY MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. MMADs HAS NO LIABILITY, WHATSOEVER, TO THE PUBLISHER OR ANY THIRD PARTY FOR THE PUBLISHER’S USE OF, OR INABILITY TO USE, THE PLATFORM, CREATIVE, SUPPRESSION LISTS AND/OR CPM REVENUE TRACKING TECHNOLOGY. MMADs MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE CAMPAIGNS CONTEMPLATED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
16. Limitation of Liability.
IN NO EVENT SHALL MMADs BE LIABLE TO PUBLISHER FOR: (a) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY; OR (b) MORE THAN THE CPM REVENUE PAYMENTS PAYABLE BY MMADs HEREUNDER, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT THE MUTUAL PROMISES CONTAINED HEREIN REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
The publisher recognizes that MMADs has proprietary relationships with the Advertisers that participate on the Platform. Other than through the Platform as contemplated under the Agreement, Publisher agrees not to circumvent MMADs’s relationship with its Advertisers, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the Services provided by and through the Platform to any Advertiser during the Term and for the one (1) year period following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Publisher can show that any such Advertiser already obtained such services from Publisher prior to the Effective Date, then Publisher shall not be prohibited from continuing such relationship. Publisher agrees that monetary damages for its breach, or threatened breach, of this Section 18 will not be adequate and that MMADs shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Publisher in an amount equal to one hundred percent (100%) of the fees paid to Publisher in violation of this Section 18 for the prior twelve (12) month period; and/or (c) any and all other remedies available to MMADs at law or in equity.
No delay or failure by either party to exercise any right under the Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided for herein. A waiver of default shall not be a waiver of any other or subsequent default.
19. Entire Agreement.
This Publisher Agreement, together with the Policies, contains the entire agreement between the parties. No modification of the Agreement shall be effective unless in writing and executed by an executive officer of both parties.
If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any Applicable Law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
21. Relationship of the Parties.
The relationship of MMADs and Publisher established by the Agreement is solely that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representation, warranty or covenant, or assume or create any obligation, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives. Both parties acknowledge that Publisher’s employees and Sub-Marketers are not, nor shall they be deemed to be, employees or independent contractors of MMADs.
Neither party shall, without the prior written consent of the other party, assign its rights or delegate its duties under the Agreement, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either party may, in the event of a merger, acquisition or sale of substantially all of such party’s assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other party. The provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
23. Force Majeure.
Each party shall be excused from the performance of its obligations under the Agreement and any delay or failure in performance by such party shall not be grounds for termination of the Agreement for cause or give rise to any liability for damages, to the extent that such party is prevented from performing due to a cause that is beyond its reasonable control including, but not limited to, an act of God, act or omission of the other party, act of any government or regulatory body (whether civil or military, domestic or foreign), fire, explosion, flood, earthquake or other natural or man-made disaster, epidemic, sabotage, war, riot, civil disturbance, strike, labor dispute, loss of electrical or other power or telecommunications equipment (each a “Force Majeure Event“). Each party agrees to use commercially reasonable and diligent and determined efforts to minimize the length and effects of delays that occur due to the occurrence of a Force Majeure Event. Each party agrees to provide prompt notice to the other party to the extent such party is relying or expects to rely on the provisions of this subsection to excuse its delay or failure to perform.
All section headings and captions have been inserted for convenience only and shall not affect the interpretation of the Agreement.
26. Electronic Signatures.
Publisher acknowledges and agrees that Publisher accepts this Publisher Agreement and any and all Policies via electronic means rather than via traditional handwritten signature (“Electronic Acceptance”). Publisher acknowledges and agrees that by clicking on the submit button, or taking such other action as may be designated by MMADs as a means of accepting this Publisher Agreement and any and all Policies, 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 Publisher Agreement and any and all Policies. Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, 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 PLATFORM, WEBSITES AND/OR SERVICES OFFERED BY MMADs. Further, the 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.