3. Obligations of the Parties.
a. Publisher Sites. Publisher Sites shall not promote, contain or link to any destination that includes, contains or promotes (i) pornographic, obscene, libelous or offensive material, (ii) software trading, hacking or phreaking content, (iii) unauthorized audio or video reproduction, downloads or content, (iv) any spyware, adware, trojans, viruses, worms, spybots, keyloggers or any other form of malware, or (v) any illegal content.
b. No Subcontractors. Publisher is prohibited from generating any Traffic through the use of any subcontractors, affiliate networks, offer boards or networks, or any other third party (collectively, “Subcontractors”) unless the use of such Subcontractors is QS Approved. If so authorized, Publisher must comply with the following requirements: (i) unless otherwise QS Approved, the identity of each Subcontractor must be disclosed to QS, (ii) a QS Approved tracking code mechanism is used which permits QS to distinguish Publisher Traffic generated from each Subcontractor without providing the identity of the Subcontractor (e.g., Subcontractor 1, Subcontractor 2), (iii) Publisher has entered into a written agreement with each such Subcontractor that requires the Subcontractor to comply with all applicable laws, rules and regulations (including, the Telephone Consumer Protection Act, 47 USC 227 and 47 CFR, Sec 64.1200 (“TCPA”), the CAN SPAM Act of 2003 (“CAN-SPAM”) and the Canadian Anti-Spam Law of 2014 (“CASL”)), and (iv) Publisher will terminate any Traffic generation from any Subcontractor upon QS’s request.
c. Privacy and Data Security. Publisher shall publish and maintain on each website from which it generates Traffic a privacy policy that complies with all applicable laws, rules and regulations. In addition, if Publisher provides Lead Data to QS, Publisher must comply with the terms and conditions of the QuinStreet Publisher Privacy and Data Security Annex (“PPDS Annex”). Failure to comply with the PPDS Annex will be deemed a material breach of this Agreement.
d. Prohibited Activities. Publisher will not (i) provide any form of incentives or compensation to generate Traffic under this Agreement, (ii) use or engage in any false impression, email spamming or search engine “spamming” (i.e., the inappropriate use of search engine optimization tactics such as doorway pages or cloaking), or (iii) use of QS Content in any pop-ups. In addition, Publisher is prohibited from sending, directly or indirectly, any email that contains (x) QS Content, (y) a reference to QS or a QS Client, or (z) any links to a QS or QS Client website, in each case unless QS Approved.
e. Use of Marks. Publisher may use QS’s Marks and QS Client Marks only as QS Approved. QS may terminate Publisher’s right to use any QS Marks or QS Client Marks at any time in its sole discretion. Publisher will not bid on QS Client Marks as a keyword or part of a keyword phrase in any search engine or similar cost-per-click advertising network. QS may use Publisher Marks only as Publisher Approved. Publisher may terminate QS’s right to use any Publisher Marks at any time in its sole discretion.
f. Guidelines. Publisher will make commercially reasonable efforts to comply with any QS Client advertising guidelines provided in writing to Publisher and will comply with any updates to such guidelines within three (3) business days’ written notice of such updates. Publisher’s continued use of any QS Content following such notification period will be deemed Publisher’s acceptance of such updated guidelines.
g. Publicity. Neither Party may reference the other Party in any publicity without the Approval of such other Party. In addition, Publisher may not reference any QS Client or include any QS Content in any publicity or printed materials, advertising or otherwise without QS Approval.
h. Restrictions on Emails Linking to Websites That Contain QS Content or References. If Publisher sends, directly or indirectly through a Subcontractor, any email that links, directly or indirectly, to a website that contains QS Content or any reference to QS or a QS Client, Publisher shall comply with each of the following requirements set forth below.
1. Emails shall use only creative, from lines, and subject lines provided or Approved by QS in writing. Publisher shall not remove or alter subject lines, from lines, or creatives provided or Approved by QS in writing.
2. Publisher must comply with all applicable laws, rules and regulations including but not limited to, TCPA, CAN-SPAM, CASL, California Business & Professions Code Section 17529.1 et seq. (“CA BPC § 17529.1 et seq.”), the Federal Trade Commission Act, and any other applicable laws, rules and regulations. Additionally, Publisher must comply with each of the following:
i. Any email sent by Publisher must have, in the “from” line, a domain name registered to the sender that accurately identifies the Publisher and which can be confirmed by performing a WHOIS look-up.
ii. Publisher is prohibited from using “subject” lines that contain “Re:…”, “Fwd:…” or other similar short-hands that obscure the email as an original advertising communication from the Publisher.
iii. Publisher shall not send email messages from accounts obtained using scripts or other automated means of registering for multiple email accounts.
3. Publisher shall submit the content for each email to QS for review and QS Approval prior to sending such email as part of any email campaign. Publisher shall not alter the content of emails in any way after QS’s Approval, including the “subject” lines and “from” lines of emails, without the prior written consent of QS.
4. Intellectual Property
Publisher shall immediately stop sending any email campaigns upon written notice from QS.
a. No Modification of QS Content. To the extent QS provides Publisher with any QS Content, Publisher will implement the QS Content in the exact form delivered by QS subject to any QS Approved modifications. Publisher will not modify, obscure, alter, delete, disable or impede the display of the QS Content, including any links therein, in any manner unless such modification is QS Approved. Publisher will not make use of the QS Content for any purpose other than as contemplated by this Agreement unless QS Approved. New QS Content may be provided to Publisher from time to time, and Publisher will use commercially reasonable efforts to comply with all changes within three (3) business days. QS shall not be liable to Publisher for any failure by Publisher to use the QS Content as instructed.
b. License. QS hereby grants Publisher a limited, fully-paid, non-exclusive, non-transferable, non-sublicensable (except as otherwise provided herein) license during the term of the Agreement to use the QS Content provided by QS to Publisher solely for the purposes contemplated by this Agreement.
c. Intellectual Property Ownership. Subject to the limited licenses granted in this Agreement, each Party shall own and shall retain all right, title and interest in its Intellectual Property and Confidential Information. Except as provided in this Agreement, neither Party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any Intellectual Property of the other Party without the express prior written consent of such Party.
d. Data Ownership. Unless otherwise set forth in a SO or an IO, QS is the exclusive owner of all data collected or generated pursuant to this Agreement, including Lead Data, performance data and the Suppression Lists as defined in the QuinStreet Service Order for Email Publishers, (collectively, “QS Data”). Publisher may not resell or redistribute QS Data or any derivative QS Data nor remarket to or otherwise use any QS Data or any derivative QS Data other than in accordance with this Agreement (including any applicable SO, IO or addendum).
5. Payment Conditions.
a. Pricing; Payment Terms. QS will pay Publisher the fees indicated on any IO or as established via the Platform and such payment will be in accordance with the payment terms set forth in the SO. QS will pay Publisher within forty-five (45) days following the end of each calendar month, unless otherwise set forth on an IO. Payments for amounts less than $100 will be rolled over to the next pay period.
b. Payment Timing. QS may withhold payment until it has received payment from the applicable QS Client with respect to Traffic generated by Publisher. If Publisher receives a payment for Traffic which is later returned or refunded to a QS Client, QS may set off such payments against Publisher’s outstanding or future payments for Traffic.
c. Deceptive, Fraudulent or Blocked Traffic. QS is not obligated to pay and reserves the right to withhold payment to Publisher if Publisher has engaged in activity that is deceptive or fraudulent in nature as reasonably determined by QS. Examples include clicks without referring URLs, clicks from non-approved root URLs, or an unusually high amount of Traffic from an IP address. Impressions that are served but are not received due to blocking technology or software shall not count towards any payment calculation.
d. Breach. QS may withhold payment under this Agreement if QS reasonably believes Publisher is in breach of a material term of this Agreement and QS has provided notice of such breach to Publisher.
