PUBLISHER EMAIL ADDENDUM
2. Anti-Spam Policy. Company has a strict policy against sending unsolicited commercial email ("UCE"), commonly referred to as "Spam". Publisher warrants and represents that Company Campaigns will only be sent to permission-based subscribers who either have (i) given Publisher (or a third party) express consent to allow Publisher to send them such email messages in response to a clear and conspicuous request for such consent or at the recipient's own initiative or (ii) with whom Publisher has a prior business relationship. Any claims against Company from recipients of Company Campaigns that such emails constitute UCE will be directed to Publisher and Publisher will make reasonable efforts to satisfactorily resolve the issue with the recipient. Publisher shall also provide, within twenty-four (24) hours of Company's request, the following subscriber sign-up/registration data with respect to any UCE complaint: (i) the subscriber email address used to sign-up/register for Publisher's Email List; (ii) subscriber's IP address; (3) date and time of subscriber's sign-up/registration for Publisher's Email List; and (iv) location of subscriber's sign-up/registration (i.e., what is the original source of the subscriber email address; where did the subscriber sign-up/register for Publisher's Email List).
3. Suppression Files. (a) Prior to Publisher distributing Company Campaigns under this Agreement and regularly thereafter, Company will provide Publisher with its suppression file. Publisher will "scrub" its email lists before mailing the email Ads to ensure that none of the email addresses from either Company's or Publisher's suppression files or from any email addresses or domains posted by federal or state authorities for which email may not be sent are sent in Publisher's mailings to its customers. Publisher may not use Company's suppression file for any other purpose, will return such file upon Company's request and certify that it has not retained any copies of any portion of such suppression file. (b) Company may also provide Publisher with a list of prohibited and/or suspended affiliates ("Prohibited Affiliate List") and Publisher shall ensure that Company Campaigns are only distributed by affiliates who expressly agree to or whose policies are consistent with the terms of this Addendum and who are not on the Prohibited Affiliate List.
4. Campaign Content. For all Company Campaigns, Publisher will only use from lines, subject lines, email creative and/or other content approved by Company for a particular campaign.
6. Affiliate Networks. In the event of any third-party complaints regarding any Company Campaign or a breach of any provision of this Addendum by one of Publisher's marketing affiliates or assignees, Publisher shall identify the affiliate involved (including trading name, corporate name and principals) and any relevant facts within two business days of a request from Company. Company may disclose this or any other pertinent information as may be necessary to enforce the terms of any agreements or to protect the rights, property, or safety of Company or others.
7. Confidentiality. Information exchanged by the parties pursuant to Sections 2, 3 and 6 above shall be deemed Confidential Information which may only be used and/or disclosed as expressly provided herein, provided that either party may disclose such information as required by law, governmental agency or rule, or court order, so long as the party required to disclose the information provides the other party with timely prior notice of such requirement where permitted
8. Remedies. (a) Publisher recognizes that a breach of this Addendum could result in immediate, extraordinary and irreparable damage to Company. Accordingly, Publisher agrees that should it and/or its marketing affiliates violate these provisions, Company in addition to other legal remedies, (I) shall be entitled to seek preliminary and permanent injunctive relief without the necessity of posting a bond; and (ii) may terminate this Agreement immediately without liability for any traffic generated via conduct in violation of this Addendum. For conduct involving marketing affiliates, Company shall remain liable for traffic generated through non-breaching affiliates except where Publisher fails to identify the offending affiliate as required by Section 6 above. (b) The rights and remedies granted to a party under this Addendum are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Notwithstanding any provision in any Insertion Order or other Agreement between the parties, this Addendum shall be governed by the laws of the State of California without respect to choice of law rules. The parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Los Angeles County, California for any proceeding arising out of this Addendum. No limitation of liability or damages stated in any other Agreement among the parties shall apply to a breach of this Addendum.
9. Indemnity Publisher shall indemnify, defend and hold harmless Company, its directors, officers, employees, agents and assigns from any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house counsel time, court costs and witness fees) incurred by, or imposed or asserted against Company which, if true, would constitute or relate to a violation of this Addendum by Publisher.
This Addendum may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For purposes hereof, a facsimile copy of this Addendum shall be deemed to be an original. In witness whereof, the parties have caused this Agreement to be executed by their respective duly authorized representatives as of the date indicated below.