a. Purpose. These Publisher Terms (the “Terms”) set forth the terms and conditions pursuant to which Publisher may provide certain types of Traffic to QS. Traffic type will be specified in one or more Service Orders (“SOs”) entered into between the Parties. The Parties may also enter into one or more Insertion Orders (“IOs”) pursuant to a SO, which shall set forth pricing terms with respect to the Traffic.
b. Conflicts. If there is a conflict between these Terms, any SO and any IO the order of precedence will be (i) the SO, (ii) the Terms and (iii) the IO. Notwithstanding the foregoing, these Terms may only be modified in writing in a SO or an IO if such SO or IO includes a specific cross-reference to the section of the Terms intended to be modified.
c. Acceptance. Execution or electronic acceptance of any SO or IO that references these Terms shall be deemed acceptance of these Terms.
a. Agreement means these Terms, together with the applicable SO and IO.
b. Approved or Approval means the written consent by an authorized representative of the approving Party, sent in accordance with the Section 13.i Notice provision.
c. Intellectual Property means all intellectual property rights worldwide, including Marks, trade dress, Internet domain names, rights in Internet websites, copyrights, patents, trade secrets, software, know-how and proprietary technology.
d. Insertion Order or IO means an insertion order signed by the Parties that references one or more SOs or type of Traffic. IOs specify (i) the quantity, type and price of Traffic to be delivered, (ii) campaign start and end dates, and (iii) Traffic filters and any other delivery criteria.
e. Lead means a request from an individual for information about products or services provided by QS or a QS Client, which includes Lead Data.
f. Lead Data means contact and other information associated with a Lead (e.g., name, telephone number and any other information provided by Publisher to QS in connection with a Lead).
g. Marks mean any trade names, logos, trademarks and service marks, whether or not registered.
h. QS means QuinStreet, Inc. To the extent any activities or services to be performed by QS under an Agreement are required to be performed under applicable law by a licensed affiliate (e.g., insurance or mortgage-related activities), QS shall be responsible for ensuring that such activities or services are performed by such licensed affiliate.
i. QS Content means all content, creative assets, advertising listings, forms, web design services, telephone numbers, software or technology platforms, telephone scripts, QS Marks and QS Client Marks, together with any associated links and hyperlinks which direct Traffic to a QS or QS Client webpage, and any imbedded bots and tracking tools contained in any link.
j. QS Client means a client of QS or any of its affiliates.
k. Parties mean QS and Publisher, collectively.
l. Platform means QS’s proprietary online marketplace, including the QuinStreet Media Platform (“QMP”), through which Publisher can manage and track applicable Traffic, such as Leads and clicks, generated by Publisher and provides ad serving, managing, and reporting services.
m. Publisher means the company or entity that executes or electronically accepts a SO or an IO to provide Traffic to QS or electronically accepts this Agreement.
n. Publisher Sites mean websites or emails Approved by QS which are used by Publisher to generate Traffic.
o. Service Order or SO means a QS service order executed or electronically accepted by Publisher that specifically references these Terms and specifies the Traffic to be provided by Publisher hereunder. Each SO may contain a reference to one or more additional incorporated documents, including IOs.
p. Traffic means a Lead, Lead Data, click, impression, telephonic warm transfers, telephonic call, sale or any other action to be delivered by Publisher to QS as specified in a SO.
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.
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. Publisher shall immediately stop sending any email campaigns upon written notice from QS.
4. Intellectual Property.
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.
6. Term and Termination; Suspension.
a. Term; Termination. The Agreement commences on the SO Effective Date as set forth in a SO and continues as long as such SO is in effect. Termination under one SO shall not impact the terms, rights or obligations of the Parties under these Terms with respect to any other SO. Either Party may terminate this Agreement and all SOs then in effect, or any individual SO, upon three (3) days written notice to the other Party.
b. Suspension. QS may at any time upon written (including emailed) notice suspend Publisher’s participation in any SO if QS reasonably believes such suspension is necessary to protect QS from legal harm or other financial consequences. Publisher will pause any live campaigns as soon as practicable but in any no event within more than three (3) business days after receipt of such notice.
c. Effect of Termination. QS shall pay Publisher any outstanding amounts owed to Publisher as of the effective date of such termination in accordance with the payment schedule agreed by the Parties with respect to such Traffic.
7. Restrictive Covenants.
a. Non-Solicitation of Employees. During the term of this Agreement (which shall include any period during which the Publisher delivers Traffic to QS), neither Party will, directly or indirectly, solicit for employment or services, any employee, consultant or independent contractor of the other Party. Notwithstanding the foregoing, neither Party shall be prevented from soliciting for employment any person of the other Party who (i) responds to a general advertisement, (ii) initiates employment discussions with such Party, or (iii) has been terminated by the other Party.
b. Non-Solicitation of QS Clients. During the term of any SO and for one (1) year thereafter, Publisher will not, directly or indirectly, solicit, divert, or appropriate any QS Client. The foregoing restriction shall not apply to such QS Clients with whom Publisher can demonstrate a previously existing business relationship.
8. Confidentiality. Neither Party will use, exploit or disclose any Confidential Information of the other Party except for purposes of carrying out the business transaction between the Parties contemplated by this Agreement, and for no other purpose whatsoever. For purposes of this Agreement, “Confidential Information” means the terms of this Agreement and any technical, marketing, financial, employee, planning and other confidential or proprietary information, including customer and supplier lists, and any information that is: (i) 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 (ii) the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Pricing information and other terms related to the performance of this Agreement constitute QS Confidential Information. Unless otherwise expressly set forth in a SO or an IO, QS’s Confidential Information includes QS Data, Lead Data, QS Client lists, the identity of the QS Clients and all information relating to QS’s relationship with its Clients. Confidential Information does not include information that: (a) is or has been independently developed by the receiving Party without access to the other Party’s Confidential Information; (b) is or has become generally known to the public through no breach of this Agreement by the receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been Approved for release in writing by the disclosing Party; or (e) is required to be disclosed by a competent legal or governmental authority; provided that the recipient notifies the other Party of the required disclosure promptly and in writing and cooperates with the other Party, at the other Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. Upon the earlier to occur of termination of this Agreement or the request of the disclosing Party, the receiving Party shall destroy or return all of the disclosing Party’s Confidential Information to the disclosing Party and if so requested by the disclosing Party, deliver to the disclosing Party a certificate executed by one of its duly authorized officers confirming compliance with the return or destruction obligation.
9. Representations and Warranties. Each Party represents, warrants and covenants to the other Party that (i) it has all necessary rights and authority to enter into this Agreement and to grant the rights and licenses hereunder, (ii) the execution or electronic acceptance of this Agreement and the performance of its respective obligations hereunder do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound, and (iii) its performance hereunder will comply with all applicable laws, rules and regulations. QS further represents, warrants and covenants to Publisher that (a) it has all rights necessary on behalf of itself and each QS Client to include the QS Client in activities contemplated by this Agreement, and to provide the QS Content, QS Marks and QS Client Marks for use by Publisher as contemplated herein, and (b) the QS Content and Publisher’s use thereof will not violate or infringe any third party right.
10. Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party and the other Party’s directors, officers, employees, affiliates, subsidiaries, successors and assigns (collectively, the “Indemnified Parties”) from and against any claim, demand, action, judgment, decree, loss, damage, liability, cost and expense (including reasonable and documented out-of-pocket legal fees and expenses) (“Losses”) incurred by such Indemnified Parties in connection with any claim to the extent arising from, relating to, or alleging that the Indemnifying Party (i) breached any of its representations, warranties or covenants, or (ii) violated any third party’s Intellectual Property right in connection with this Agreement. Additionally, Publisher shall indemnify, defend and hold QS, and each of QS’s Indemnified Parties, harmless from and against all Losses incurred in connection with (a) any act or omission of any Subcontractor, including any act or omission of any Subcontractor which constitutes a breach of any of Publisher’s representations, warranties or covenants under the Agreement, and (b) the Publisher Sites (except to the extent of any unmodified QS Content) and any other website or email used by Publisher to generate Traffic under this Agreement. The Indemnified Party(s) will promptly notify the Indemnifying Party of all Losses of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the Indemnifying Party’s obligations except to the extent such Party is prejudiced by such failure or delay), and will: (1) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of all Losses; and (2) be entitled to participate at its own expense in the defense of all Losses. The Indemnified Party(s) agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of all Losses; provided, however, that the Indemnifying Party will not acquiesce to any judgment or enter into any settlement which in either case imposes any obligation or liability on an Indemnified Party(s) without its prior written consent.
11. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH OTHERWISE HEREIN, THE SERVICES PROVIDED BY QS HEREUNDER, THE QS CONTENT, AND QS’S OR QS CLIENTS’ WEBSITES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Liability. QS WILL HAVE NO LIABILITY TO PUBLISHER FOR MATERIAL THAT IS NOT QS APPROVED, INCLUDING ALL COPIES, IMAGES, URL NAMES AND SEARCH TERMS USED BY PUBLISHER TO PROMOTE A QS CLIENT. EXCEPT FOR EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY LOSS OF DATA, EQUIPMENT DOWNTIME, OR ANY LOSS OF REVENUE OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CONNECTION WITH (A) PUBLISHER’S INDEMNIFICATION OBLIGATIONS HEREUNDER AND (B) PUBLISHER’S VIOLATIONS OF LAW IN CONNECTION WITH ITS PERFORMANCE HEREUNDER, EACH PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAYABLE TO PUBLISHER BY QS UNDER THIS AGREEMENT IN THE SIX (6) COMPLETED CALENDAR MONTHS PRECEDING THE CLAIM GIVING RISE TO ANY SUCH LIABILITY.
a. Monitoring. Publisher acknowledges and agrees that QS may monitor, via manual or automatic means, the Publisher Sites to ensure compliance with this Agreement and the advertising guidelines of QS and QS Clients. Upon QS’s request, Publisher shall implement any monitoring software or other compliance tools to ensure compliance with applicable QS Client requirements and, where applicable, Publisher shall allow QS access to any records generated by such software or tools. Publisher shall retain records for a period of five (5) years after such record’s generation.
b. Survival. All provisions contained in the Terms or SOs that by their terms should be understood to survive the expiration or termination of the Terms or applicable SO shall survive such expiration or termination, including, but not limited to, Sections 2, 3.g, 3.h, 4.c, 4.d, 5.b, 5.c, 6.c, 7.b and 8 through 13 of the Terms.
c. Relationship of the Parties. The Parties’ relationship is one of independent contractors and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, or employment relationship between the Parties.
d. Assignment. Publisher may not assign this Agreement, by operation of law or otherwise, without the prior written consent of QS. Notwithstanding the foregoing, Publisher shall have the right to assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of Publisher’s assets; provided, that Publisher promptly notifies QS in writing of such an event and QS shall have the right to immediately terminate this Agreement by written notice to Publisher.
e. Entire Agreement. This Agreement and any applicable SO or IO (including any pricing schedule provided by QS pursuant to the Platform) constitute the entire agreement between the Parties regarding the subject matter hereof and supersede any other agreements or understandings (whether written or oral) between the Parties regarding the subject matter hereof. This Agreement may not be amended without the written consent of QS and Publisher.
f. Waiver. A Party's waiver of, or failure to enforce, any right hereunder on one occasion will not be deemed a waiver of any other right on the same occasion or the same right on any other occasion.
g. Severability. If a court of competent jurisdiction declares any provision of this Agreement to be invalid or unenforceable the remainder of this Agreement will continue in full force and effect.
h. Governing Law; Venue. This Agreement will be governed by the laws of the State of California without reference to its choice of law principles. The Parties agree to submit to the exclusive jurisdiction of (i) the state courts located in San Mateo County in the State of California and (ii) the federal courts located in the Northern District of California, with respect to disputes hereunder.
i. Notifications. Any notice, approval or other communication to the other Party under this Agreement must be submitted to the person set forth in the Notice provision of the applicable IO by (i) overnight express mail or certified or registered mail (postage prepaid, return receipt requested) or (ii) email. An email notice will be deemed received upon sender’s receipt of an acknowledgement form the recipient (such as by the “return receipt requested” function, return email, or other written acknowledgment) to the contact details provided by the other Party.
QuinStreet Publisher Terms - Version 01-11-2017