Camp Lejeune - Legal/MassTort - US - RevShare [sms approved]

RESTRICTIONS

Absolutely No Incent, No Coreg, No Facebook Groups, No Craigslist SMS/Text Message Addendum to the ADVERTISER Terms and Conditions to Publisher Insertion Orders This SMS/Text Message Addendum to the ADVERTISER Terms and Conditions to Publisher Insertion Orders (“Addendum”) is incorporated into the ADVERTISER Terms and Conditions to Publisher Insertion Orders (“Ts &Cs”), which include one or more Insertion Order(s) (each, an “IO”)(the IO (s) which together with this Addendum and the Ts & Cs comprise the “Agreement”), entered into by and between ADVERTISER and Publisher. Recitals WHEREAS, ADVERTISER and Publisher executed the Ts & Cs to govern the term and conditions under which Publisher provides certain Internet-based lead generation, customer acquisition and/or other related services for ADVERTISER for the campaigns listed in the IO (“Campaigns”). All capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Ts & Cs); WHEREAS, the Ts & Cs prohibit the use of SMS/text messaging in connection with providing Services to generate leads and/or acquire customers for the Campaigns; and WHEREAS, the parties wish to permit Publisher to use SMS/text messaging as a means of generating leads and/or acquiring customers for the Campaigns, subject to the terms and conditions set forth for herein. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, ADVERTISER and Publisher, intending to be legally bound hereby, agree as follows: 1. COORDINATION. If there is a conflict between this Addendum and the Ts & Cs or an IO executed before the Addendum Effective Date, this Addendum shall control. If there is a conflict between this Addendum and an IO executed after the Addendum Effective Date, the IO shall control. 2. SMS/TEXT CAMPAIGNS. For purposes of SMS/text messaging, this Addendum shall control over any previously signed IO’s or Terms and Conditions with respect to all SMS/Text campaigns run by Publisher. 2.1 Publisher may conduct a Messaging Campaign by contacting only consumers (“Consenting Users”) who have provided Publisher with “prior express written consent” (“TCPA Consent”) as that term is defined in the Telephone Consumer Protection Act (47 USC § 227) and its implementing regulations, 47 CFR §64.1200, as amended from time-to-time (“TCPA”) to be contacted via Messaging by or on behalf of the entity designated by ADVERTISER. The language to be used by Publisher to obtain TCPA Consent from Consenting Users (“Consent Language”) must include the Publisher, as well as all language and other elements required under the TCPA, the most recent version of the Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices for Messaging, the most recent version of the Cellular Telecommunications Industry Association (“CTIA”) SMS Interoperability Guidelines and CTIA Short 1 Code Monitoring Handbook, the rules, terms, conditions and policies of all participating mobile telephone carriers, as well as any other rules applicable to Messaging (“Applicable Messaging Rules”). 2.2 Sample Consent Language from Publisher’s own sites as well as any other data sources of Publisher shall be provided to ADVERTISER for its prior written approval before any Messaging in connection with a Campaign commences. 2.3 Publisher shall maintain or cause to be maintained records (“TCPA Records”) of the TCPA Consents obtained from each Consenting User, including the date and time stamp of when the TCPA Consent was obtained, the IP address/device ID of the Consenting User, the Consent Language associated with each such TCPA Consent and such other information, and/or documentation, that is reasonably necessary to prove in a regulatory or judicial proceeding, or in discussions that could reasonably be expected to predate such a proceeding, that the Publisher secured legally sufficient TCPA Consent from the Consenting User to be contacted via Messaging by Publisher on behalf of the Named ADVERTISER. Publisher shall maintain the TCPA Records at its expense for at least 7 years, and shall provide such TCPA Records to ADVERTISER within 5 business days of its written request therefor. 2.4 Publisher shall vet Messaging service providers and only use those entities/persons (“Approved Providers”) who, in its reasonable commercial judgment, have the technical capabilities and appropriate training and management that enables such Approved Providers to send SMS/text messages (“Messages”) in compliance with all Applicable Laws, Rules and Regulations and Applicable Messaging Rules including: (a) sending Messages in accordance with the Telemarketing Sales Rule time of day restrictions based on where the recipient resides; (b) maintaining an operable opt-out system which suppresses users who opt-out from receiving future Messages; and (c) maintaining a system which records the date/time stamp and Message content for each Message sent to recipients. Publisher shall be solely responsible for the acts and omissions of its Approved Providers. 2.5 Publisher shall ensure that all Messages sent in connection with a Messaging Campaign comply with all Applicable Laws, Rules and Regulations, Applicable Messaging Rules and the other terms, conditions and restrictions contained in the Ts & Cs. The content of all Messages to be sent for a Campaign (“Message Content”) shall be provided to ADVERTISER for its prior written approval before such Message Content is used for a Campaign. No copy, images, links, buttons or text other than the Message Content that was pre-approved by ADVERTISER, in writing (including any links provided by ADVERTISER), may be used by Publisher in connection with its Messaging activities. Publisher will not make any changes to the Message Content without ADVERTISER'S prior written approval in each instance 2.6 If receiving phone data for the purpose of SMS/text messaging from a third party Publisher will ensure that there is clear and conspicuous language identifying any entities that will be receiving phone data for the purpose of sending SMS/text messages substantially similar to language included in Exhibit A below either directly above or below the submit button on the page where the data is collected. 3. COMPLIANCE MONITORING AND CONSEQUENCES OF NON-COMPLIANCE: 3.1 ADVERTISER will actively monitor Publisher’s activity using a combination of its own seeding and proprietary software and/or third party monitoring services including Lashback, to confirm that Publisher’s Messaging activities comply with this Addendum. Leads generated from Messaging 2 activities that do not comply with this Addendum shall be deemed Fraudulent Leads for purposes of the Ts &Cs. If Publisher is unable to reasonably prove that Publisher is not committing fraud and/or attempting to supply Fraudulent Leads from its Messaging activities, Publisher will forfeit the Fees for the subject Fraudulent Leads and Publisher's account will be terminated. 3.2 If Publisher uses any non-compliant Consent Language or Message Content, or, in the reasonable discretion of ADVERTISER, otherwise violates this Addendum, any Business Rules, Applicable Laws, Rules and Regulations or Applicable Messaging Rules, ADVERTISER may: (a) disable any links contained in the Messages; (b) immediately terminate the Agreement upon 2 business days prior written notice; (c) withhold all payments otherwise due and owing to Publisher attributable to same; and/or (d) hold Publisher liable for any and all damages and/or claims attributable to same, without regard to any of the limitations of liability contained in the Agreement. 3.3 Publisher may only use a Network Member for its Messaging activities if (i) Publisher provides ADVERTISER the name and/or sub ID for the Network Member, and (ii) ADVERTISER provides its prior written approval for the proposed Network Member (once approved, an “Approved Network Member”). In that event, Publisher shall be responsible for the actions of the Approved Network Member and, as such, the provisions set forth in this Addendum applicable to Publisher, including Sections 3.1 and 3.2 hereof, shall apply to the Approved Network Member. Publisher shall maintain and provide to ADVERTISER, upon request: (a) any and all names under which its Approved Network Member(s) and Approved Providers do business; (b) the state of incorporation/formation of each of Approved Network Member and Approved Providers; (c) the registered agent of each of its Approved Network Member and Approved Providers; (d) the first and last name, physical address, country, telephone number, and email address for at least one natural person who owns, manages or controls each Approved Network Member and/or Approved Provider, as the case may be; and (e) the complete bank account information associated with the payments that are to be made to the Approved Network Member and Approved Providers. 4. INDEMNIFICATION: Publisher agrees to indemnify, defend and hold harmless ADVERTISER and its employees, agents, officers and directors (collectively, the “Indemnified Parties”), from and against any and all claims, causes of action, judgments, demands, damages, losses and/or liabilities, including costs and expenses (including reasonable attorney’s fees and costs of suit), arising out of or relating to: (a) any breach of any covenant, representation or warranty contained in this Addendum by Publisher, an Approved Provider and/or a Network Member; (b) any Message Content and/or any Messaging activity undertaken by Publisher, an Approved Provider and/or a Network Member; and/or (c) the Consent Language and/or TCPA Consent. If any such action shall be brought against or involve ADVERTISER, ADVERTISER shall notify the Publisher in writing and Publisher shall assume and control the defense and settlement of each such action, including the employment of counsel and the payment of all associated expenses. ADVERTISER shall have the right to employ separate counsel in any such action and participate in the defense, at its own expense; provided, however, that if the named parties to such action or proceeding include both Publisher and an Indemnified Party and that Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to Publisher, the Indemnified Party will be entitled to employ separate counsel at Publisher’s sole cost and expense. Publisher may not agree to any stipulation, admission, or acknowledgment of any fault, guilt, wrongdoing, or liability on ADVERTISER'S part without ADVERTISER'S prior written consent and may not settle any claim on ADVERTISER'S behalf, or publicize any settlement, without ADVERTISER'S prior written consent. 3 5. AGREEMENT IN COUNTERPARTS. This Addendum may be signed in counterparts, and facsimile signatures shall have the same force and effect as an original signature. 6. INCORPORATION OF BALANCE OF TERMS. This Addendum shall be deemed incorporated into and made a part of the Ts & Cs. The balance of the Agreement, to the extent not inconsistent with or amended by this Addendum, shall be applicable to and govern the Messaging activities of Publisher.