Media Service Agreement

THIS MEDIA SERVICE AGREEMENT (“Agreement”), is entered into by and between Prime Media Network, LLC a Delaware limited liability company d/b/a “Prime Media Network” and/or “Prime Media” and/or “Content Ready” (collectively “Prime Media”) at 5666 La Jolla Blvd, #206, La Jolla, CA 92037 and the person or entity registered herewith on and through Prime Media Website or otherwise identified on the accompanying or subsequent Insertion Order (“Client”) (singularly “Party” or collectively “Parties”) for the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged.

This Agreement and the accompanying and subsequent Insertion Order(s) (“IO(s)”) shall define the Prime Media and Client’s obligations with respect to Prime Media and Content Ready services including Subscriber Acquisition, Lead Generation, Lead Purchase, List Management, Affiliate Programs, Content Creation, and Brand Management Services (Collectively “Services”). Each IO submitted by Client shall incorporate this Agreement without further reference. Each IO shall be a separate and distinct contractual obligation on the part of the Parties. In the event of a conflict between an IO and this Agreement, this Agreement shall prevail and govern the Parties relationship. In the event that Prime Media is required to digitally sign or agree to additional terms during the provision of Services on behalf of Client, both Parties agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot quickly be altered. Therefore, any terms which appear on any website or platform not owned and operated by Prime Media shall be disregarded and deemed ineffective, being superseded by this Agreement.

1. Terms Applicable to Lead Generation Services. To the extent an IO provides for access to participate in Prime Media lead generation set forth on an applicable IO (“Leads”) as defined in an applicable IO, then the following terms and conditions shall apply:

a.) Live Lead Generation. Client shall purchase from Prime Media Leads as set forth in an applicable Insertion Order from time-to-time during the Term (as defined below), in accordance with the terms and subject to the conditions set forth in this Agreement. All such Leads shall include those fields of information and other data described on the IO.

b.) Payment Terms. All payment terms shall be set forth in the applicable IO.

c.) Delivery. Prime Media shall transmit Leads to Client using the delivery method agreed upon between the Parties or as specified in the applicable IO. Notwithstanding any other provision in this Agreement, Prime Media does not guarantee the frequency or number of Leads delivered to Client.

d.) Ownership and Use of Leads. Prime Media retains sole ownership of all Leads until such time as Client purchases such Leads. Upon purchase, ownership of such Leads shall be held jointly by Client and Prime Media.

e.) Lead Security. Client will maintain, at all times during the term of this Agreement, information security practices designed to protect the physical and technical security, confidentiality, and integrity of consumer information provided within the Leads, including without limitation, encrypted password protected access to all data on secure servers and/or other secure devices. Including non-public personal information, sent by Prime Media to Client or by Client to any other party. In the event that any Lead or any part thereof has been disclosed or revealed to, or accessed by, any unauthorized person or to any unauthorized third-party, whether intentionally or inadvertently, by means of a breach of Client’s security processes or otherwise (a “Security Breach”) Client shall promptly notify Prime Media of such event and the parties shall cooperate the ensure compliance with all applicable laws.

f.) Representations and Warranties Pertaining to Lead Generation Services.

(i.) Prime Media Representations and Warranties. Prime Media represents and warrants to Company that: (1.) It has full power and authority to enter into this Agreement and it is a duly formed United States entity, in good standing, with a United States principal place of business; (2.) All Leads transferred to Client was/will be obtained, collected, and compiled on servers located in the United States, including any and all data collected from consumers located outside of the United States; (3.) The Lead was and will be obtained, collected, and compiled using methods that comply with all applicable laws, rules and/or regulations including, without limitation, the CAN-SPAM Act of 2003, Federal Trade Commission Act, California Business and Profession Code and all state and federal privacy laws, rules, and regulations; (4.) THE SERVICE PROVIDED BY PRIME MEDIA, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PRIME MEDIA MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN, PRIME MEDIA DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, RESPONSE RATES, OR ABILITY TO CONVERT THE RESPONSES INTO SALES. PRIME MEDIA DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. ALL ORDERS ARE CONTINGENT UPON PRIME MEDIA’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND PRIME MEDIA IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, PANDEMIC, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. PRIME MEDIA WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATE REQUIREMENTS BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.

(ii.) Client represents and warrants to Prime Media as follows, and agrees to perform the following covenants:

(1.) Client shall comply with all applicable Federal, State, and local laws and regulations in connection with the operation of its business and the performance of its obligations under this Agreement.

(2.) Client agrees that the Lead shall remain the property of Prime Media until purchased and shall not use the Lead for any purpose until such lead is purchased.

(3.) Client is duly licensed, authorized and certified by all applicable governmental regulatory authorities to operate its business as it is now conducted, and it shall acquire and maintain appropriate licenses, authorizations, and certifications from all applicable governmental regulatory authorities required to perform its obligations hereunder during the course of this Agreement.

(4.) Client shall use the Lead in compliance with all applicable laws, rules, and regulations governing the same including but not limited to the CAN-SPAM ACT of 2003, Federal Trade Commission Act, California Business and Profession Code, and all state and federal privacy laws, rules, and regulations.

2. Terms Applicable to Content Creation and Brand Management Services by Content Ready. To the extent an Insertion Order includes Content Ready Services to create or manage content on Clients Website(s) as defined in an applicable Insertion Order, then the following terms and conditions shall apply.

a.) Available Content Ready Services defined.

(i.) “Content Creation” shall mean the development of marketing topic, writer selection, editing, fact checking, and final production of commercial content as a work for hire with all intellectual property rights vested in and owned by Client.

(ii.) “Content Management” shall mean the organization Client’s content calendars, images, formatting, and posting to maximize consumer interest, engagement, and monetization.

(iii.) “Content Syndication” shall mean distribution and republishing of copyrighted content created, licensed, or owned exclusively by Content Ready available for syndication through RSS feeds on a per feed, CPM or revenue sharing basis as defined in an Insertion Order. All Content Syndication shall be provided on a license.

(iv.) “Brand Management” shall mean assistance to Client in the day-to-day management of the Client website, webpages, and/or Newsletters to include publication, sending, and client reporting as directed and approved by Client.

(v.) “Content Monetization” shall mean placement of third-party paid advertising in and around client content, client website, or webpages as directed and approved by Client.

2.1. Content Creation Services Terms.

a.) Services. Content Ready shall work with Client to develop content for Client’s Web and/or Email applicable publication(s). Client content creation services may include the development of headlines, subject lines, articles, posts, comments, meta data, and tags as set forth in any applicable Insertion Order (collectively “Content”).

b.) Payment. All payment terms shall be set forth in the applicable IO.

c.) Representations and Warranties. Content provided by Content Ready will be primarily original work excluding credited quotes and references, is not owned by any third-party, and has not been obtained by unlawful means, has not been previously published including but not limited to printed or electronic means and that the publication of the article will not violate an intellectual property right of any third-party.

d.) Work for Hire. All Articles purchased by Client under this Agreement shall be considered works for hire, and further, to the extend any intellectual property right does not pass pursuant to a work for hire, Content Ready, Its staff, writers, editors and contractors hereby assigns to Client all rights to publish the Article in any tangible medium of expression, now known or later developed, from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, including without limitation the rights to archive, republish, edit, repackage, or revise any Article in any manner as Client sees fit.

e.) Disclaimer of Warranty. EXCEPT AS SET FORTH IN THIS SECTION 2.1, CONTENT READY MAKES NO OTHER REPRESENTATIONS AND WARRANTIES AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WHICH COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY DEALING OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY REGARDING CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, OR PERFORMANCE.

2.2. Content Management Terms.

a.) Services. Content Ready shall work with Client in the development, placement, and organization of Client content on Client’s digital media. Services include sourcing, formatting, image selection, and posting on Client’s Website and newsletters. Such Services may be undertaken with Client original content, Content Creation by Contact Ready, or Content lawfully obtained through licensed syndicated RSS feeds.

b.) Compensation. Client agrees to pay Content Ready a management fee as set forth in the applicable Insertion Order.

2.3. Content Syndication.

a.) License Grant. Subject to the terms of this Agreement and the applicable IO, Content Ready hereby grants Client, during the Term, a revocable, non-transferable, non-sublicensable, nonexclusive license to display on Client’s registered website, webpage, or newsletter (collectively “Client Property”) the headlines, active links, or other source identifiers, and other information or materials, including any promotional taglines that you specifically select to receive from Content Ready Syndication (collectively, the “Content”) through the Content Syndication provided that you do not alter, edit, or delete such Content. This License may restrict, suspend, or terminate your access to any aspect or all of the Content Syndication Service at any time without liability. Content Ready reserves the right to modify the Content or its services at any time within its sole discretion. Client agrees that the Content Syndication Service availability is subject to change at Content Ready’s sole discretion.

b.) Reservation of Rights. The Content Syndication Service is protected by the copyright laws of the United States and international copyright treaties. As between the Parties, title, ownership rights, and intellectual property rights in and to the Service, and any copies or portions thereof, shall remain in Content Syndication. In addition, any additional programming or technology provided by Content Syndication in connection with the delivery of the Content Syndication Service or otherwise shall remain the sole property of Content Ready and no part thereof shall be deemed assigned or licensed to Client. All rights to the Content and Service not expressly granted to Client in this Agreement remain with Content Ready.

c.) Restrictions on Use. Except as expressly set forth hereinabove, and/or unless otherwise written consent is granted by Content Ready, you may not, directly or indirectly:

(i.) sell, modify, translate, copy, publish, transmit, distribute, or otherwise disseminate the Content or Content Syndication Service or any portion thereof; or delete or fail to display any promotional taglines included therein;

(ii.) rent, lease, or otherwise transfer rights to the Content or Content Syndication Service;

(iii.) display the name, logo, trademark, or other identifier of another person on Client website, webpage, or newsletter in such a manner as to give the viewer the impression that such other person is an author, publisher, or distributor of the Content or Content Syndication Service;

(iv.) remove, conceal, or delete any copyright or other proprietary notice or any credit-line or date-line on other mark or source identifier included in the Content or on the Content Syndication Service, including without limitation, the size, color, location, or style of Content Ready’s marks;

(v.) encumber the Content or Content Syndication Service with any lien or security interest thereon;

(vi.) make any representation or warranty on behalf of Content Ready pertaining to authorship or ownership of the Content or Content Syndication Service ; or

(vii.) use the Content Syndication Service on any website, webpage, or newsletter that contains nudity or pornographic material of any kind, displays material that exploits children under the age of 18 promotes or provides instructional information about illegal activities or physical harm or injury against any group or individual, or use the Service in any manner that is obscene, defamatory, libelous, invasive of personal privacy, or misleading.

d.) Restrictions. Unless otherwise authorized by Content Ready in writing, Client will:

(i.) display the Content in the exact form received, and not modify or edit any of the foregoing without Content Ready’s prior written consent;

(ii.) comply with all applicable laws and all limitations and restrictions (if any) placed by Content Ready on the use, display, or distribution of any Content (“Usage Restrictions”); and

(iii.) provide Content Ready complete and accurate registration information when requested to do so and keep such registration information current. Client represents and warrants that its website, webpage, and/or newsletter do not and will not infringe any trademark, service mark, copyright, right to publicity, right of privacy, or other intellectual property right of a third-party, constitute false, deceptive, or unfair advertising or disparagement under applicable law, or fail to comply with applicable laws and regulations (including, for example, licensing requirements and administrative or professional rules). Content Ready represents and warrants that it either is the sole owner of all U.S. trademark, copyright, patent rights, and service marks in and to the Content Ready Service provided to Client for display. Content Ready shall not be liable for any claims or actions arising from any Content included in the Service that has been edited or altered in any manner by Client. In addition, Content Ready has no responsibility or liability for Clients use of the Content or Content Syndication Services or for the development, operation, and maintenance of Client website, webpage, or newsletter.

e.) Compensation. Client agrees to pay Content Ready a management fee as set forth in the applicable Insertion Order.

f.) WARRANTY DISCLAIMER. CONTENT READY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY TYPE. CONTENT READY PROVIDES THE SERVICE AND CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, ACCURACY, OR RELIABILITY. NO WARRANTY OR REPRESENTATION IS MADE OF THE AMOUNT OF INTEREST THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

g.) LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL PRIME MEDIA D/B/A CONTENT READY BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF SERVICES, CONTENT OR RESULTS, COMPUTER FAILURE, OR MALFUNCTION. IN NO EVENT WILL CONTENT READY BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES PAID BY CLIENT (IF ANY) IN CONNECTION WITH THE SERVICE THIRTY (30) DAYS PRIOR TO THE DATE THE CLAIM AROSE, EVEN IF CONTENT READY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. TO THE EXTENT THAT THE FOREGOING LIMITATION IS NOT APPLICABLE FOR ANY REASON, THE LIABILITY OF THE PROVIDERS, THIRD-PARTY CONTENT PROVIDERS, AND THEIR RESPECTIVE AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

2.4. Brand Management Services.

a.) Services Provided. Content Ready Brand Management Services, as set forth on any applicable Insertion Order may include client Web and email publishing assistance, preparation of daily newsletters, coordination of Content acquisition and creation services, placement of commercial advertising, placement and usage of digital reporting and tracking systems, subscriber list segmentation and suppression as further set forth in the applicable IO.

b.) Fees and Costs Associated Services. Client shall be responsible and liable for all costs and fees associated with third-party tools and systems necessary and approved by Client to provide services, including but not limited to, hosting, email sending, suppression management. Client shall also be responsible for fees and costs associated with services by Prime Media as set forth on the applicable IO.

c.) Disclaimer of Warranties. BRAND MANAGEMENT SERVICES BY PRIME MEDIA, ITS’ USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PRIME MEDIA MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN, PRIME MEDIA DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, RESPONSE RATES, OR ABILITY TO CONVERT THE RESPONSES INTO SALES. PRIME MEDIA DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF ANY RESPONSE. PRIME MEDIA WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATE REQUIREMENTS BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. PRIME MEDIA SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE COSTS, ACTIONS, OR SERVICES OF ANY THIRD-PARTY WITH WHOM IT OR CLIENT ENGAGE TO PROVIDE SERVICES.

3. Lead Purchase and List Management Services. To the extent an IO provides for Lead Purchase and List Management Services, then the following terms and conditions shall apply:

a.) Sale of Leads.

(i.) Sale of Leads. Prime Media grants and Client hereby accepts title free and clear of any liens or encumbrances Prime Media provided Leads consisting of consumer provided information including email address pursuant to the terms and conditions set forth in this Section 3(a).

(ii.) Delivery of the Leads. Prime Media shall deliver a grouping of Leads in the form of a compiled Database to Client in a manner and method as agreed to by and between the Parties. Prime Media does not transfer any express permissions for email marketing or telemarketing with the Database.

(iii.) Ownership of the Leads. The Parties expressly agree that upon full payment, title to the Leads is vested in both Prime Media and Client. Either Party may, in its sole discretion, license, sell, or otherwise make use of such Leads so long as any sale or use is following all applicable laws, rules, and regulations pertaining to the same.

(iv.) Payment. In exchange for the transfer of the Database, Client shall pay Prime Media the sum set forth in the applicable IO prior to delivery of the List.

(v.) Disclaimer and Limitation of Liability. PRIME MEDIA MAKES NO WARRANTY WHATSOEVER AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES WHICH COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY DEALING OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY REGARDING CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, OR PERFORMANCE. CLIENT ACCEPTS THE DATABASE AS IS WITH NO EXPECTATION REGARDING THE SAME. BUYER RELEASES SELLER FROM ANY AND ALL LIABILITY WITH RESPECT TO THE DATABASE. EACH PARTY AGREES THAT THIS SECTION 3 IS AN AGREED UPON BENEFIT OF THE BARGAIN WITHOUT WHICH THE DATABASE WOULD NOT HAVE BEEN SOLD TO BUYER.

b.) List Management Services.

(i.) Services. Prime Media will undertake List Management Services, as set forth on any applicable IO, which may include the management and growth of Client’s subscriber database, procurement of Leads, and Subscriber Acquisition campaigns including the sale and management of email marketing campaigns for Advertisers on behalf of Client. Such Services may also include, procurement of commercial offers, preparation and sending of newsletters, and commercial email marketing on behalf of Client.

(ii.) Fees and Costs Associated Services. Client shall be responsible and liable for all costs and fees associated with third-parties necessary to provide services, including but not limited to, hosting, email sending, suppression management, legal compliance, and third-party tracking platforms. Client shall pay to Prime Media a fee for services which shall be a percentage of Gross Revenue as set forth on the applicable IO. In the event Prime Media as part of its Services collects revenue from an advertiser for distribution to Client, then Prime Media shall report to Client gross revenue received and shall remove their percentage portion prior to distribution of any funds to Client. In all cases, Prime Media’s reporting shall be final and determinative.

(iii.) Disclaimer of Warranties. SERVICES BY PRIME MEDIA, ITS USE AND THE RESULTS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PRIME MEDIA MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN, PRIME MEDIA DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, RESPONSE RATES, OR ABILITY TO CONVERT THE RESPONSES INTO SALES. PRIME MEDIA DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF ANY RESPONSE. PRIME MEDIA WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATE REQUIREMENTS BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. PRIME MEDIA SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE COSTS, ACTIONS OR SERVICES OF ANY THIRD-PARTY WITH WHOM IT OR CLIENT ENGAGE TO PROVIDE SERVICES.

4. Terms Applicable to Prime Media Publisher Network Affiliate Program. The following terms apply to Publisher Network Affiliate Program.

a.) Publisher Services. Publisher agrees to place provided Prime Media advertising links, including the landing page and creative, ad tags, the ad copy, and/or HTML, “Subject” and “From” lines, the CAN-SPAM disclosures, and any other disclosures provided therein, (collectively “Ad”) on or in Publisher’s media exactly as it appears on the Platform or as provided to Publisher via email. Publisher may not alter the Ad in any manner, including resizing of Ads, without written approval from Prime Media. Publisher agrees to perform the Services in full compliance with all applicable laws, rules and regulations governing the method of syndication. To the extent Publisher wishes to use its own campaign material, Publisher must obtain written permission of Prime Media. Only if Publisher receives approval from Prime Media, may it use its own campaign materials. Publisher may not change the approved creatives in any manner after approval. Failure to use Ad as provided or failure to obtain written approval for publisher campaign material or a violation of an applicable law, rule, or regulation, will result in non-payment for fees associated with unapproved Ad and may result in suspension of account and potential termination of agreement.

(i.) Publisher sending campaign utilizing its own brand as the sender (“Branded Email”) must have the consent of the consumer to send commercial email messages; and each Publisher shall maintain records evidencing such consent, including, without limitation:

(1.) the member opt-in date;

(2.) the registration source;

(3.) their first name and last name;

(5.) their mailing address [if collected];

(6.) their email address;

(7.) the Privacy Policy of the source website at the time consumer data was collected; and

(8.) any other information collected, and provide any such records to Prime Media, within one (1) business day of the request.

(ii.) Publisher is responsible for knowing the source of its email list. Email addresses may not be obtained by the use of a campaign for random generation of email addresses, and/or “scraping” websites, or online services. Publisher must have full opt-in data for all recipients in its database.

(iii.) Publisher shall be accurately identified in the “From” line and shall ensure that the same meet all legal standards and requirements applicable thereto. Publisher shall not use Prime Media’s name, including any abbreviation thereof, nor any URL of Prime Media in the “From” line, “Subject” line, or the body of the email. If mailing to or from the State of California, Publisher must identify itself in the “friendly from” through an accurately, openly registered mailing domain, which may be examined through a “whois” search or in the footer of email or through a webpage. If Publisher utilizes a service that does not provide for open registration, it shall have a website in the name of the mailing domain identifying registrant’s information or shall fully indemnify for any and all claims related to the failure or inability of Publisher to openly register its mailing domain.

(iv.) Publisher’s email may not include falsification of header information, false registrations for domain accounts, email accounts, or IP addresses used in connection with email ads, and retransmissions of an email ad for the purpose of concealing its origin. All mailing domains must be accurately registered to the Publisher. No proxy server traffic is allowed. Publisher and/or their email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization.

(v.) The “To” line must contain the consumer’s email address, “Undisclosed,” or left blank.

(vi.) Publisher shall develop and use a “Subject” line, which accurately describes the services or products advertised in the body of the email. “Subject” lines may not be false or misleading such that it would likely mislead a reasonable recipient as to the contents or subject matter of the message. The creative contained in the body of the email must meet or exceed all applicable legal requirements governing the same. Publisher must identify the email by “clear and conspicuous” means as an advertisement.

(vii.) Publisher must give the recipient the ability to click on a link to unsubscribe, opt-out via postal letter, and provide a functioning unsubscribe link that must remain in operation for thirty (30) days from the date of the original email transmission. The link must be identified as “Opt-Out”.

(viii.) In the body of the email, Publisher must include a valid physical address or postal address registered to Publisher for the purposes of receiving correspondence from consumers requesting to opt-out. Publisher shall post Prime Media provided physical or postal address in each email in addition to Publisher’s valid physical or postal address.

(ix.) All unsubscribe requests must be adhered to within ten (10) business days from their receipt. Publisher may not sell or transfer an email address once someone has opted out of receiving future communications, whether from Company, Publishers, or globally.

(x.) Publisher agrees that prior to mailing any Ad, it will download the most recent suppression file(s) for any particular campaign, and for that campaign, they will suppress all email addresses within its database that are found on such list. In addition, for any campaigns that include a domain suppression list, Publisher agrees that prior to mailing the campaign, it will download the most recent domain suppression list for any particular campaign and for that campaign and will suppress all domains within its database found on such list. Publisher must download and remove the domains on the FCC’s wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html from all current data used in all mailings. Publisher further warrants that any new data that it acquires, regardless of its source, will be run against the FCC’s wireless domain names list, and that domain names contained therein will be removed before sending any mailings.

b.) Limited License Grant. Prime Media grants Publisher a revocable, nontransferable, non-sub-licensable, non-exclusive limited license to use: (i.) the creative assets of any Program provided to Publisher via email and the Platform including any Ads posted thereon; and (ii.) Prime Media’s tracking system, and any data, reports, information, or analysis arising out of such use (“Platform Data”) solely for the purpose of marketing or promoting the campaigns subject to this Agreement.

c.) Tracking. Publisher may be granted limited access to its tracking account through the Prime Media Platform. Publisher shall not attempt to reverse engineer, decompile, disassemble, or otherwise gain access to any other data or tracking account, or use tracking for any other purpose. Publisher agrees that Prime Media shall be entitled to injunctive relief precluding Publisher from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violation by Publisher without posting bond or demonstration of monetary damages.

d.) Ownership. Prime Media owns all rights, title, and interest to all provided Ad materials on its Platform including: (i.) all links and user data collected and derived through the activities of Publisher pursuant to this Agreement, as well as; (ii.) the Service’s software, applications, data, methods of doing business, or any elements thereof, or; (iii.) any content provided or submitted by Publisher for approval by Prime Media, including the Ads. All information submitted to Publisher by an end-user customer, pursuant to a Program, is proprietary information of Prime Media. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute, or commercially exploit any such proprietary information in any manner. Publisher shall maintain such data in a secure manner, consistent with industry standards. All information provided to Publisher hereunder shall be kept strictly confidential. Any data derived by any Data Miner, shall be the sole property of Prime Media. Prime Media may, from time to time, opt to share data derived from Data Miners with Publisher to help Publisher optimize the quality of leads generated from Publisher’s activities or to otherwise improve the quality, functionality, and mutual profitability of the activities of the Parties under this Agreement. If Prime Media does share data derived from Data Miners with Publisher, Publisher agrees that this data will be used solely by Publisher for the purposes for which it is provided to Publisher and will not be shared by Publisher with any other third-party or entity without the written approval of Prime Media. Should Prime Media choose to provide advertising creative content, web design Services, or other web content of any type (“Web Content”) to Publisher, Publisher shall use such Web Content: (i.) in exactly the form that it is delivered to the Publisher by Prime Media without modification, unless approved by Prime Media in writing; and (ii.) only in the manner expressly permitted by Prime Media in writing and only until Prime Media requests that Publisher discontinue its use of such advertising creative, at which time Publisher shall discontinue such use within two (2) business days of being requested by Prime Media to do so.

e.) Fraud Prohibited.

(i.) Monitor and Inactivation. Prime Media may, but is not required to, monitor traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Fraudulent traffic includes, but is not limited to: (1.) click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Prime Media; (2.) click or lead generation Programs generating clicks or leads with no indication by website traffic that it can sustain the clicks or leads reported; (3.) fraudulent leads as determined and reported by Advertisers; (4.) use of any incentives to procure clicks or leads; and (5.) leads obtained other than through intended consumer action without prior written approval of Prime Media and use of fake redirects, automated software, proxy servers, and/or other mechanisms deemed fraudulent by Prime Media to generate Events from the Campaigns.

(ii.) Penalties. If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre-population of forms or mechanisms not approved by Prime Media or use of websites in co-registration campaigns, sequential promotion, or registration sites), unless approved by Prime Media, as determined solely by Prime Media, Publisher will forfeit its entire commission for all Campaigns and its account will be terminated. In addition, in the Event that Publisher has already received payment for fraudulent activities, Prime Media reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher.

(iii.) Adware and Spyware prohibited. Publisher shall at no time, engage in, disseminate, promote, or otherwise distribute, any Program or marketing campaign through the use of contextual media, specifically downloadable software (also called adware, spyware, pop-up/pop-under technologies, plug-ins, and other names, as applicable). This prohibition applies equally to Publisher and any of its Sub-Publishers. In the Event that Prime Media discovers that Publisher is engaging in, disseminating, promoting, or otherwise distributing, any Program-related contextual marketing campaign which results in a violation of the Agreement, then Prime Media may, at its sole discretion, terminate this Agreement and immediately halt any and all Prime Media Publisher-related contextual marketing campaigns, making payment only on legitimate earnings of Publisher as accrued through the date and time of termination.

(iv.) Indemnity. Publisher will defend, indemnify, and hold harmless Prime Media, its advertisers and client partners, and each of their affiliates, directors, employees, agents, successors, and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) (collectively “Claims”) arising from: (1.) any violation of an applicable law, rule, regulation or judicial order, including but not limited to, the CAN-SPAM ACT, California Business and Professions Code, CCPA, or other privacy or consumer protection law or regulation; or (2.) breach of any of this Agreement or any Insertion Order terms or any breach by a sub-Publisher for the same; or registration of sending domains in a manner and method in which Publisher or any sub-publisher cannot be identified by a whois lookup or in the body of email. Prime Media will defend, indemnify, and hold harmless Publisher and their directors, employees, agents, successors, and assigns from all third-party claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) (collectively “Prime Claims”) arising from any violation of an applicable law pertaining solely to Prime Media internal marketing materials. Prime Media shall assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying Party hereunder for which Publisher shall pay for all reasonable costs associated with such defense, including, but not limited to, reasonable attorney fees, expert fees, costs, and settlement. Publisher hereby acknowledges that the Advertisers are intended third-Party beneficiaries of the foregoing indemnification obligation. No settlement may be consummated without each Party’s express written authorization, which consent shall not be unreasonably withheld.

5. Applicable Provisions to All Services Provided by Prime Media. The following provisions apply to all Services provided by Prime Media:

a.) Term and Termination. The term of this Agreement (“Term”) shall commence as of the Effective Date and shall remain in effect for a period of twelve (12) months, unless terminated by either Party, with or without cause, upon three (3) business day prior written notice (email sufficient) delivered to the other Party. After the initial twelve (12) month period, the Agreement shall automatically renew until terminated by either Party. Prime Media may terminate this agreement immediately upon written notice in the event Client violates an applicable law, rule, or regulation or materially breaches this agreement.

b.) Limitation of Liability. IN ALL CIRCUMSTANCES, PRIME MEDIA SHALL NOT BE LIABLE FOR ANY PUNITIVE DAMAGES, INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS, OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE, OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME, AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY. IN ANY EVENT, PRIME MEDIA’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS PAID TO IT BY CLIENT IN THE THIRTY (30) DAYS PRECEDING THE CLAIM.

c.) LIMITATION OF WARRANTIES. DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, PRIME MEDIA CANNOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE LINKS OR OUR SERVICES. WITHOUT LIMITING THE ABOVE, THE LINKS, WEBSITES, AND ANY OTHER MATERIALS PROVIDED PRIME MEDIA ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND, AND PRIME MEDIA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, AND: (i.) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii.) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS THEREIN; (iii.) THAT A PARTY’S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE FACE OF ALL ATTACKS; (iv.) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET FORTH THEREIN OR THEREON; OR (v.) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY’S “INFORMATION” (WEBSITE). ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK, AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER. SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, IN THOSE STATES THIS PROVISION MAY BE LIMITED.

d.) Indemnification. Client will defend, indemnify, and hold harmless Prime Media, and their affiliates, directors, employees, agents, successors, and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) (collectively “Claims”) arising from any breach of any of this Agreement or use or misuse of any Lead. Prime Media reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying Party hereunder. No settlement may be consummated without Prime Media’s express written authorization, which shall not be unreasonably withheld. Client will promptly notify Prime Media of any current, impending, or potential legal action, claim or investigation against it by a third-party for matters which could reasonably extend to Prime Media when the same arise.

e.) Confidentiality.

(i.) The term “Confidential Information” shall mean: (1.) any and all information which is disclosed by either Party (“Owner”) to the other (“Recipient”) verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (2.) the terms of this Agreement, any IOs, and any proposals or other documents that preceded this Agreement, including without limitation the pricing of any services or Lead Data provided under this Agreement. Confidential Information may include, but not be limited to, trade secrets, computer programs, software, documentation, formulas, reporting functions, underwriting policies, practices and methodology, data, inventions, techniques, marketing plans, strategies, forecasts, employee information, financial information, confidential information concerning Owner’s business or organization, as Owner has conducted it or as Owner may conduct it in the future. In addition, Confidential Information may include information concerning any of Owner’s past, current, or possible future products or methods, including information about Owner’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third-party software).

(ii.) Treatment of Confidential Information. Owner’s Confidential Information shall be treated as strictly confidential by Recipient, and Recipient shall protect and preserve its confidential nature. Recipient shall not directly or indirectly disclose or attempt to reverse engineer any Confidential Information to any third-party except to those third-parties operating under non-disclosure provisions no less restrictive than in this Section and who have a justified business “need to know” or upon the express written consent of the Owner. Notwithstanding the forgoing, nothing therein shall prohibit either Party from: providing any financial information required by an auditor or any underwriter of any public offering of a Party’s stock, provided that the disclosure is subject to a non-disclosure agreement that prohibits the competitive use of or the further dissemination of the information or responding to legitimate inquiries from the investment community. This clause shall be enforceable during the Term of this Agreement and will continue to remain enforceable after the termination of this Agreement for a period of two (2) years. This Agreement imposes no obligation upon the Parties with respect to Confidential Information which either Party can establish by legally sufficient evidence: (1.) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (2.) is or becomes generally known to the public without violation of this Agreement; (3.) is obtained by Recipient in good faith from a third-party having the right to disclose it without an obligation of confidentiality; (4.) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information or the use of Confidential Information; or (5.) is required to be disclosed by court order or other lawful governmental action, but only to the extent so ordered, provided that the Recipient immediately notifies the Owner of such requirement so that the Owner may attempt to obtain a protective order either restricting or preventing such disclosure, and the Recipient cooperates with the Owner to resist such disclosure and protect its rights in the Confidential Information.

(iii.) Rights and Duties. The Recipient shall not obtain, by virtue of this Agreement, any rights, title, or interest in any Confidential Information of the Owner. Within fifteen (15) days after termination of this Agreement, each Party shall certify in writing to the other that all copies of Confidential Information in any form in its possession or control, including partial copies, have been destroyed, returned to Owner, or used solely as the Owner so directs, except for those copies of Confidential Information which a Party needs to retain for tax, accounting, and legal purposes.

f.) Privacy Compliance. Client shall comply with all Federal, State, and local laws, rules, regulations, and ordinances governing or relating to privacy rights in connection with their performance under this Agreement including, without limitation, state online privacy protection laws. Client shall implement such physical and other security measures as shall be necessary to: (i.) ensure the secure handling, transmission, storage, and disposal or any “nonpublic personal information” of the “customers” and “consumers” which the Parties hold or handle; (ii.) protect against any threats or hazards to the security and integrity of such nonpublic personal information; and (iii.) protect against any unauthorized access to or use of such nonpublic personal information. Upon request, Client will provide reasonably satisfactory evidence to permit the other Party to confirm that it has satisfied its obligations as required under this Section.

g.) Dispute Resolution. This Agreement shall be governed by the laws of the United States and the State of California without respect to choice of law rules. The Parties consent to have all disputes regarding this Agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division. The Parties agree to conduct the arbitration in San Diego, California and each Party shall bear the costs of such arbitration. The Parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them. This provision was a bargained for relinquishment of both Parties rights to jurisdiction in their respective states or countries. The Parties waive the personal service of any process upon them and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement. The prevailing Party in any arbitration, shall be entitled to an award of attorney fees and costs for such arbitration.

h.) General Terms.

(i.) Notices. All notices, requests, consents, demands, or other communications given under this Agreement shall be in writing and shall be deemed duly given and received: (1.) upon personal delivery to the Party to whom it is directed; (2.) three (3) business days after being sent by certified or registered mail return receipt requested, to the Party to whom it is directed, postage, and charges prepaid; (3.) one (1) business day after being sent by express overnight delivery by a national carrier to the Party to whom it is directed; (4.) upon being transmitted by confirmed email or facsimile to the Party to whom it is directed so long as the sender retains the confirmation copy indicating that the facsimile or email was received by the Party to whom it is directed; or (5.) upon actual delivery followed by the sending of an acknowledgment of receipt if sent by electronic mail or any other electronic means (electronic mail or any other electronic means shall constitute a writing for purposes of this Agreement). All notices, requests, consents, demands, and other communications shall be addressed to Prime Media, Attn: Legal at 5666 La Jolla Blvd, #206, La Jolla, CA 92037. Client shall receive notices at the address used for registration of services. which addresses may be changed from time to time by either Party by providing notice to the other in the manner set forth above.

(ii.) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.

(iii.) Waiver. The failure of a Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with that provision or any other provision of this Agreement.

(iv.) Entire Agreement. This Agreement and the IO(s) contain the entire agreement between the Parties with respect to the subject matter of this Agreement, and this Agreement and the IO(s) supersede any prior written or oral discussions, agreements, and/or undertakings of any kind and nature between the Parties with respect to the subject matter of this Agreement. Except as provided or contemplated by this Agreement, this Agreement shall not be amended except by a writing signed by both Parties.

(v.) Attorneys’ Fees and Costs. If any legal action is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing Party shall be entitled to recover its attorneys’ fees and other costs in addition to any other relief to which it may be entitled.

(vi.) Relationship. The Parties agree that Prime Media is acting as an independent contractor in performing the Services and that the relationship between Prime Media and Client shall not constitute a partnership, joint venture, or agency. Neither Prime Media nor any of Prime Media’s employees or agents (collectively referred to herein as the “Employees”): (1.) is an employee, agent, or legal representative of Client; or (2.) shall have any authority to represent Client or to enter into any contracts or assume any liabilities on behalf of Client. Prime Media retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate, and terminate such Employees. Neither Prime Media nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Client employees. Nothing in the Agreement is intended or shall be construed to give any person other than the Parties hereto, their respective successors and assigns, any legal or equitable right, remedy, or claim under or in respect of the Agreement or any provision contained herein.

(vii.) Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, Pandemic or any other cause beyond the reasonable control of such Party; provided, that the Party whose performance is affected by any such Event gives the other Party written notice thereof within three (3) business days of such Event or occurrence.

(viii.) Assignment. This Agreement and the rights hereunder are not transferable or assignable without prior written consent of the non-assigning Party; provided, however, that this Agreement may be assigned by either Party: (1.) to a person or entity who acquires substantially all of that Party’s assets, stock, or business by sale, merger, or otherwise; and (2.) to an affiliate of either Party.

ELECTRONIC SIGNATURES. Client acknowledges and agrees that by clicking on the button labeled “Agree” or such similar links as may be designated by Prime Media to accept the terms and conditions of this Agreement, Client is submitting a legally binding electronic signature and is entering into a legally binding contract. Client acknowledges that its electronic submissions constitute its Agreement and intent to be bound by this Agreement and all terms contained therein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (“E-Sign Act”) or other similar statutes, CLIENT 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 SOFTWARE OR SERVICES OFFERED BY PRIME MEDIA. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws 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.