Publisher terms and conditions

These Publisher Terms and Conditions govern the placement and delivery of advertising by you and your entity (collectively, “Publisher”) and  Tyrads ltd., a Labuan limited company with offices at Level 2, Lot 19, Lazenda Commercial Centre, Phase 3, 87007, Labuan, Malaysia  (“Tyrads”) and, together with any Offer-specific terms or Insertion Order (each, an “IO”), which are incorporated herein by reference, constitute a written and binding agreement between Tyrads and Publisher  (the “Agreement”). This Agreement replaces and supersedes any prior terms and conditions between Tyrads and Publisher. Publisher shall be legally bound by this Agreement by executing a hard copy of this Agreement, electronically accepting this Agreement online, and/or by using Tyrads’s services.  This Agreement may be amended from time to time in Tyrads’s discretion and pursuant to applicable law. Amended versions of this Agreement will be effective upon posting at www.Tyrads.com. Notification of significant amendments shall be provided to Publisher by email at Publisher’s email address of record with Tyrads.

1. DEFINITIONS. As used in this Agreement, the following terms shall have the meanings set out below or as defined elsewhere in this Agreement:
   A. Actions(s): means an act, lead, or other event effectuated by a third party (e.g., a Consumer) for which Advertiser compensates Tyrads and Tyrads, in turn, compensates Publisher, such as CPA (cost per Action), CPI (cost per install), CPL (cost per lead), CPC (cost per click) or CPM (cost per thousand–e.g., impressions). Specific Action requirements for each Offer will be set forth within the Offer terms or in a separate IO.
   B. Advertiser: means a person or entity that submits Offers and Creatives for placement in Tyrads’s network for the purpose of marketing Advertiser’s products and services and generating Advertiser’s desired Action.
   C. Agent: means any sub-publisher, affiliate, distribution partner or any other similar third-party with a business relationship with Publisher, including any advertising network of Publisher.
   D. Consumer: An individual to whom an Offer is directed or who responds to an Offer and who effectuates an Action.
   E. Creative: means graphic file(s), text, links, or other creative works made available to Publisher for use in conjunction with a specific Offer.
   F. Invalid Actions: shall mean Actions that were generated in violation of the terms and conditions of this Agreement or applicable laws, Actions that do not meet all of the requirements of the Advertiser as set forth in the Offer terms or IO, Actions that contain false information (including, by way of example, “Daffy Duck” names, “1234 Main Street” addresses, or employ the use of  a stolen or invalid credit or debit card), Actions generated through any misleading or fraudulent means, or Actions that are rejected by the Advertiser.
   G. Offer: An advertisement that contains a promotion or opportunity directed to Consumers that may be made available from time to time by Tyrads for use by Publisher on the Internet or via any wireless mobile device.
2. APPROVAL. Publisher may only participate in the Tyrads network, use Creative, advertise Offers, and otherwise use Tyrads’s services after first being reviewed and approved as a Publisher by Tyrads. Tyrads reserves the right to withhold or refuse approval of any Publisher for any reason not prohibited by law. Once approved, Publisher’s account is not transferrable and may only be used by Publisher. Any attempt by Publisher to let others access its account or sell, trade or otherwise transfer its account is strictly forbidden and will result in an immediate termination of Publisher’s account and forfeiture of all fees.
3. WORKING WITH THIRD PARTIES.
   A. Approval Required for use of Agents: Publisher shall not work with any Agent with respect to the use, publication, distribution or promotion of any Offer hereunder without first notifying Tyrads, in writing, and obtaining Tyrads’s express, advance, written approval, of each Agent (which may be granted or denied in the sole discretion of Tyrads), and providing Tyrads with the identifying information of the Agent, which shall include: (i) in the case of a natural person, the Agent’s first and last name, physical address, country, telephone number, and email address; and (ii) in the case of corporations, partnerships, proprietorships, limited liability companies, organizations, associations, cooperatives, agencies, or other legal entities, the name and jurisdiction of organization for such entity and the first and last name, physical address, country, telephone number, and email address for the natural person or persons who own, manage, or control the Agent.
   B. Agent Requirements: If Tyrads grants approval for Publisher to use Agents in publishing and distributing Offers hereunder, Publisher agrees to comply with the following requirements governing Publisher’s use of Agents (collectively, the “Agent Requirements”): (i) Tyrads’s Offers may only be pulled from Publisher’s network by Agents that are direct publishers and do not have a network of their own. Publisher shall prohibit the Agent from further brokering such Offers to other publishers through a network or by any other means. (ii) Publisher shall not knowingly recruit any Agent that is already promoting an Advertiser’s Offer—whether directly, through Tyrads, or through any third-party network— to promote that same Offer through Tyrads. (iii) Publisher shall provide Tyrads with a unique ID number for each Agent on each Action generated for Tyrads’s Offers.  (iv) If any Agent running Tyrads’s Offers is generating Invalid Actions, Publisher shall provide Tyrads with the full name, address and other up-to-date contact information for such Agent immediately upon request by Tyrads (and Tyrads shall have the right to disclose such information to its Advertisers). If necessary to identify the person(s) responsible for Agent’s misconduct, upon Tyrads’s request, Publisher shall also provide all payment details for Agent, such as tax ID and bank account information. Tyrads will only use this information to create and maintain a blacklist for its Advertisers.  (v) All terms applicable to Publisher in this Agreement or any IO, including all conditions, obligations, prohibitions, limitations, representations and warranties, shall apply equally to Agent, regardless of whether Agent is specifically mentioned therein. Publisher shall comply with any Offer-specific and Advertiser-specific terms and other requirements with respect to the use of Agents.  (vi) Publisher shall prohibit any Agent that is blacklisted by Tyrads and/or the Advertiser from accessing or promoting any Offers.  (vii) Publisher shall not make Offers available generally to all of Publisher’s Agents; rather, Publisher shall screen and select each Agent that is allowed to access and promote Offers to ensure that such Agent meets the requirements set forth herein.
   C. Violation of Agent Requirements: Publisher shall not be entitled to payment for any Actions generated in violation of the Agent Requirements. In addition, Tyrads, may, at its sole option, exercise any of the following remedies for any breach of the Agent Requirements by Publisher or its Agents: (i) Prohibit any Agent that violate the Agent Requirements from accessing or promoting any Offers; (ii) Revoke the right of Publisher to use Agents to promote Offers; (iii) Terminate this Agreement and prohibit Publisher from continued participation as a Publisher for Tyrads;  (iv) Exercise any other rights and remedies under this Agreement or pursuant to applicable laws and regulations.
   D. Publisher’s Relationship with Agents: Publisher will not make any commitments or representations on behalf of Tyrads with regard to any relationship it enters into with its Agents in connection with its promotion of any Offers or otherwise. Publisher will provide all Agents with a copy of this Agreement and, upon request by Tyrads, provide Tyrads with a signed acknowledgement by the Agent of its willingness to be bound by this Agreement. Publisher shall ensure and contractually require that all Agents comply with all of the terms and conditions in this Agreement, any Offer-specific terms, and any IO. Publisher shall be fully responsible for and liable to Tyrads and its advertisers for any breach of this Agreement or violation of applicable rule, law or regulation by its Agents. Publisher is limited to a single tier of Agent relationships. Publisher will include in its terms and conditions with its Agents a clause prohibiting them from entering into any additional tier of agent relationship with respect to Tyrads’s services.
   E. Reporting and Complaint Mechanism: Publisher will establish and maintain a functioning email address or other Internet-based mechanism for consumers to report complaints regarding the practices of any Agent and make best efforts to associate each complaint with the Agent that is the subject of the complaint. Publisher will promptly report all such complaints to Tyrads and shall investigate any complaint received through this mechanism and immediately terminate any Agent that it reasonably determines has engaged, or is engaging, in violations of applicable law or this Agreement. Tyrads reserves the right to require that Publisher not use any particular Agent for Tyrads’s Offers, and any such determination shall be made in Tyrads’s sole discretion.
4. TERM AND TERMINATION. This Agreement shall have a term commencing upon execution of this Agreement and continuing thereafter until either party gives the other party two (2) business days prior written notice of its election to terminate this Agreement (which may be given without cause or reason). In addition to any other remedies that may be available to it under this agreement or pursuant to applicable law, either party may immediately terminate this Agreement and all outstanding IOs in the event of any breach by the other party of the representations and warranties contained herein or nonperformance of any of its obligations hereunder. If Publisher violates applicable law or any term of this Agreement, then in addition to immediate termination, Publisher will be subject to forfeiture of any fees earned but not yet paid, as well as possible legal action to recover fees previously paid to Publisher. Where appropriate, Tyrads may report Publisher’s misconduct to the proper authorities. Sections 3(b), 3(d), 8€(i), and 10 through 14, along with all payment, refund, and forfeiture rights for fees accrued or paid prior to termination under Section 5, shall survive Termination of this Agreement.
5. PAYMENT.
   A. Payment Schedule: Unless otherwise mutually agreed in writing by Publisher and Tyrads (which may include an exchange of emails), Tyrads will pay Publisher any fees earned during a calendar month within 60 days after the end of the month unless approved otherwise by email via a director of the company, provided, however, that (i) Advertiser has already paid Tyrads in full for the associated fees, and (ii) any account with a total balance less than $500 will be carried over and paid only when the balance exceeds $500. Tyrads is not required to pay Publisher if Advertiser does not pay Tyrads, and Tyrads shall have no duty to pursue payment by Advertiser on Publisher’s behalf. Delinquent Advertiser payments received by Tyrads will be credited to the Publisher in the month that they are received. All fees are based upon the number of Actions reported by Tyrads and as recorded in Tyrads’s systems. In order to receive payment each month, Publisher must log into its account and confirm Publisher’s agreement to the data on Actions generated by Publisher and amounts owed to Publisher for such Actions. After confirming its agreement to the data, Publisher may not thereafter challenge the data set forth in its account (however, Publisher acknowledges that Tyrads may still adjust such data for Invalid Actions, as explained below).
   B. Forfeiture of Fees for Invalid Actions: Publisher shall not earn fees on Invalid Actions, as determined by Tyrads in its sole discretion. Tyrads may also withhold payment to Publisher, offset against other payments owed Publisher, or recover directly from Publisher in the event that Tyrads determines, in its sole discretion, that Publisher has engaged in unauthorized activity, including the generation of Invalid Actions, or breached its obligations under this Agreement. In addition, if an Advertiser withholds payment to Tyrads or charges back previous payments because of actions of Publisher, Tyrads may also withhold payment to Publisher or offset such charge backs against other payments due Publisher (or if no other payments are due Publisher, Publisher shall remit payment to Tyrads upon demand by Tyrads). 
   C. Inactive accounts: If Publisher’s account is inactive for a period of sixty (60) consecutive days (meaning Publisher has not generated any Actions during such period), Publisher shall lose its right to continue to receive fees from its referrals, if applicable, of other Publishers to Tyrads. If Publisher’s account is inactive for a period of six consecutive months, Publisher’s account shall be closed and Publisher shall forfeit any remaining balance in its account to compensate Tyrads for the administrative costs of maintaining and closing an inactive account.

1. LIMITED LICENSE TO USE OFFERS AND CREATIVE. Publisher agrees that all intellectual property rights owned by Tyrads or its Advertisers shall remain their respective property. During the term of this Agreement, Tyrads grants to Publisher a nonexclusive, revocable, royalty-free license to display Offers, including any associated Creative, in accordance with the terms of this Agreement and any additional terms posted in connection with each Offer or in an IO. To the extent, if any, that an Offer contains an Advertiser’s or Tyrads’s trademarks, service marks or trade names, Publisher shall not use such marks in a manner that might be deemed to create a unitary composite mark. Publisher agrees not to use an Offer or Creative in a manner that is disparaging of Tyrads or any Advertiser. Tyrads and its Advertisers reserve all proprietary rights in and to the Offer not expressly granted herein. Publisher acknowledges that all use of the Offer and/or Creative by it inures solely to the benefit of the Advertiser. Publisher will cease using any Offer or Creative immediately upon the request of Tyrads. Upon termination of this Agreement or written notice from Tyrads, Publisher will immediately cease using all Offers and Creative, and the license granted herein shall terminate.
2. GENERAL PUBLISHER OBLIGATIONS. On behalf of itself and all Agents, Publisher represents, warants and agrees as follows:
   A. Publisher Information: All information submitted by Publisher in its application is complete and accurate. Publisher agrees that it is responsible maintaining current registration information with Tyrads including, but not limited to, its contact information.
   B. Responsibility for Agents: Publisher is solely responsible for all of its marketing activities, as well as those of its Agents, and it is individually liable for any damages or losses incurred by the violation of any applicable laws or regulations or this Agreement.
   C. Advertiser Creative: Publisher shall not modify or alter any Offer or any Creative. Publisher will only run approved Creative in its advertising of Offers and will not create its own Creative, unless expressly approved in writing from Advertiser. Any other use of Offers or Creative will result in immediate termination of this Agreement and the loss of payment for Actions.
   D. No Inappropriate Content: Publisher shall not promote an Offer on a website, in a mobile application (an “App”) or in any other context with inappropriate content, which includes, but is not limited to, content that (i) contains or promotes the use of alcohol, tobacco or illegal substances, pornography, phone sex or escort services, expletives or other inappropriate language; (ii) promotes gratuitous violence, abuses or threatens physical harm; (iii) promotes illegal or unethical activity, racism, hate, “spam,” mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes the use of illegal activities, such as how to build a bomb, counterfeiting money and software pirating (e.g., Warez, Hotline); (v) is libelous, or defamatory, or false; (vi) is otherwise expressly prohibited by federal or state law; (vii) willfully infringes on the trademark, copyright, or intellectual property rights of a third party; (viii) introduces viruses, worms, harmful code and/or Trojan horses on the Internet; or (ix) is otherwise objectionable to Advertiser, in its sole discretion.
   E. No Deceptive Advertising; FTC Advertising Compliance; International Compliance: Publisher shall not engage in any deceptive or misleading form of advertising or marketing, which includes, but is not limited to, phishing (the practice of sending an email to an individual, falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identity theft, or for any other purpose), cybersquatting, typosquatting or combosquatting. Publisher shall operate in compliance with all applicable laws, regulations, decisions and industry best practices, including but not limited to Section 5 of the Federal Trade Commission Act and any current or future rules, regulations, orders, guides or other interpretation issued by the Federal Trade Commission (“FTC”) relevant to the Offer or Offer at hand, and (ii) the Direct Marketing Association’s Best Practices for Online Advertising and Publisher Marketing. If Publisher is distributing an Offer outside the United States, Publisher represents and warrants that (1) it is familiar with the particular laws, regulations and industry customs in those countries in which is distributing the Offer, (2) it has previous experience distributing offers in such countries, and (3) it will comply with all such laws, regulations and industry customs. To be clear, Publisher is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Publisher is located.
   F. Influencer Compliance: Publisher agrees to comply with the FTC’s Endorsement Guides currently located at https://www.ftc.gov/tips-advice/business-center/guidance/ftcsendorsement-guides-what-people-are-asking, with respect to any endorsements made as part of its services hereunder, including, without limitation, properly disclosing that Publisher receives consideration for reviewing, promoting and/or recommending a product or service or engaging in any type of influence marketing.
   G. Acknowledgement of Orders: Each party acknowledges that it has received, read, and agreed to comply with the “Stipulated Final Judgment and Order for Permanent Injunction” entered on November 29, 2012 (the “FTC Order”) and the “Assurance of Voluntary Compliance” entered on November 16, 2012 (the “Florida Order”), warrants that there are no misrepresentations or material omissions in its advertisements, and understands and agrees that engaging in acts or practices prohibited by the FTC Order and the Florida Order will result in the immediate termination of this Agreement and forfeiture of all monies owed. Any party may read the FTC Order and the Florida Order by clicking here: http://www.affiliatenetwork.com/FTCorder.pdf. Each party agrees to provide the information included within this Section to each of its Agents and retain proof of the same.
   H. Privacy Policy: All tracking and other types of cookies installed by Publisher on any User’s computer or other device will comply with Publisher’s posted privacy policy and all applicable laws and regulations.
   I. Data Protection Addendum; International Compliance: Data Protection Addendum; International Compliance. Publisher has read and agrees to comply with the Data Protection Addendum, which is incorporated herein by reference. Before approving any sub-Publisher to run an Ad through Tyrads, Publisher shall present and secure the written agreement to the Data Protection Addendum from said sub-Publisher. Publisher agrees that, where applicable, its marketing and data collection practices shall comply at all times with the United Kingdom Data Protection Act of 1998 (as amended), the General Data Protection Regulation (GDPR) (EU) 2016/679, as amended and adopted by the member states of the EU, and all related directives, acts, or regulations. Publisher represents and warrants that its consumer data collection practices are performed in a manner that obtains the necessary knowing and frequent consent from consumers and that all consumer data is stored using industry-standard or better security protocols. If Publisher is either located outside the United States or offering or distributing (or potentially distributing) an Ad outside the United States, Publisher represents and warrants that (1) Publisher is familiar with the particular laws, regulations and industry customs in those countries in which Publisher is located and/or distributing the Ad, (2) Publisher has previous experience distributing Ads in such countries, and (3) Publisher will comply with all laws, regulations and industry customs applicable to the operation of its business, its marketing practices, and the collection and/or transfer of consumer data by Publisher in such countries. To be clear, Publisher is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where Publisher is located. Publisher’s obligations and liabilities under this Paragraph and the Data Protection Addendum shall extend to the conduct of all sub-Publishers.
   J. Publisher’s Media: Publisher is exclusively responsible for, and Tyrads hereby disclaims all liability for, the development, operation and maintenance of, and all costs associated with, Publisher’s website(s), App(s), and any content thereon. Publisher agrees that its websites and Apps shall not, in any way, copy or resemble the look and feel of, or create the impression that it is part of Tyrads’s or its Advertisers’ websites or Apps.
   K. No Investigation: Publisher is not currently under order or investigation by any federal, state, local, or international regulatory or law enforcement organization. Publisher will notify Tyrads immediately in writing of any investigation, litigation, arbitrated matter or other dispute relating to Publisher’s advertising, marketing or information security or privacy practices, even if any such investigation is nonpublic in nature.
3. ADDITIONAL PROVISIONS BY TRAFFIC TYPE. On behalf of itself and all Agents, Publisher represents, warrants and agrees that it will abide by the following terms governing specific traffic types, as applicable to Publisher’s and Agents’ advertising methods:
   A. No Incentivized Traffic: Any trafficking from websites that are point, lottery, or rewards-based and encourage Consumers to click on Offers or use Offers to generate revenue (whether actual or virtual in nature) for Consumers to win points, get rewards, or other incentives are expressly prohibited, unless approved in writing.
   B. Paid Search: If Publisher engages in any keyword search marketing hereunder, Publisher shall (1) comply with all rules, requirements and terms of the particular search engine being used, (2) not infringe upon any trademark or other intellectual property rights of any third parties, (3) not bid on any of Advertiser’s or Tyrads’s trademarks, brand names, or other terms (collectively, “terms”), including any variations or misspellings thereof, (4) not use Advertiser’s or Tyrads’s terms in sequence with any other keyword, (5) not use Advertiser’s or Tyrads’s terms in its ad title, ad copy, display name, or as the display URL, (6) and (3) comply with all terms and requirements of the Advertisers with respect to search marketing.
   C. Mobile Traffic: For an Offers to be distributed on wireless devices, such as cell phones and tablets, Publisher agrees to: (i) comply with all applicable laws and regulations regarding marketing to wireless devices; (ii) comply with all rules, terms and policies of the wireless service provider and the maker(s) of the wireless device and operating system running on such device, (iii) not install any software, cookies or application to the device without the express affirmative consent of the User; and (iv) provide such data regarding the Actions as may be required by Tyrads or its Advertiser from time to time, including, UDID numbers for each Action and geo and time/date of the Action generation.
   D. No Text/SMS Traffic: All advertising via text message or SMS is expressly prohibited.
   E. Email Marketing: Publisher represents and warrants that, with respect to email campaigns transmitted by Publisher for Tyrads in connection with any Offer, Publisher shall at all times maintain strict compliance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), California’s Anti-Spam Act., Cal. Bus. & Prof. Code §§ 17529 et seq. (“California’s Anti-Spam Act”), Canada’s Anti-Spam Law (“CASL”), the Federal Communications Commission’s (“FCC”) rules and orders regulating the transmission of commercial email to wireless devices, and all other applicable federal, state, local and international laws and regulations. In addition, without limiting the foregoing, Publisher agrees that it will comply with the following requirements. If Publisher uses a third party to transmit email on its behalf, then that third party and Publisher will be treated as one and the same for purposes of this Agreement. (i) Address List: a. Publisher shall ensure that the addresses on its email address list (the “List”) are entirely “opt-in.” This means that the email recipient has consented to receiving advertisements of the type sent by Publisher via a clear and conspicuous affirmative “opt-in” process (and has not subsequently revoked such consent), subject to a posted, clear, conspicuous and accurate privacy policy that allows such use. If Publisher uses the list of a third party to distribute such emails, such third parties, or “List Owners,” will be considered one and the same as Publisher for purposes of this Agreement. If any Consumer makes a spam or similar compliant with respect to any emails sent hereunder, Publisher shall immediately notify Tyrads of such compliant and shall provide documentary evidence of such Consumer’s opt in information, including IP address, date, time and other relevant information.  b. Publisher shall not promote an Offer in emails sent to persons whose email addresses were gathered in any automated process, harvesting or screen scraping, or as the result of randomly generated combinations of characters.  c. Publisher agrees that, prior to transmitting any email to the List, it will scrub the List against its own do-not- email list and, if required by the terms of the Offers, the do-not-mail list of the Advertisers for such Offers (collectively, the “Suppression List”). Publisher will conduct such purges at the last possible, commercially reasonable moment, but not more than twenty-four (24) hours before the List is sent an email promoting an Offer. Publisher will not transmit any email promoting an Offer to any address on the Suppression List. Publisher also agrees that it will download and remove the domains located 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. d. Publisher will not (and will not allow others to) sell, remarket, disclose or use the Suppression List or the email address of any person who has opted out of receiving email promoting an Offer for any reason other than to comply with this Agreement and the law.  e. For each List (including, without limitation, lists provided by a List Owner), Publisher will promptly provide Tyrads, upon Tyrads’s request, a written explanation of: (a) the source of the email addresses and the method by which the email recipients opted into receiving email such as messages promoting an Offer; and (b) the opt-in and/or opt-out process such recipients had and have, and the attendant privacy policy, as well as what made such process and policy clear and conspicuous to the consumer.  (ii) Transmission:  Publisher shall not promote an Offer in emails sent through open proxies, from email or Internet Protocol (“IP”) addresses registered through fraud or false pretenses, or through any means in violation of an Internet Service Provider’s (“ISP”) policies. (iii) Content: Publisher shall be the “sender” of the email containing Offers as defined by the CAN-SPAM Act, its rules and official guidance, and shall comply with all requirements of a “sender” under the CAN-SPAM Act, its rules and official guidance, including but not limited to 16 CFR 316.2(m). Any email from Publisher (and any party delivering emails on its behalf) shall: (i) Have valid and traceable email header information identifying the Publisher as the sending party; (ii) Within the body of the email, include a valid physical street address of Publisher; (iii) Include a clear and conspicuous identification that such email message is an advertisement or solicitation when the email is sent to an address in which there is no prior business relationship; (iv) Include a “subject line” which accurately reflects the contents of the message and that is not misleading with respect to the contents or subject matter of the message; (v) Include a friendly “from line” which accurately identifies only the Publisher as the sending party; (vi) Use only email addresses containing the name of the Publisher as the sending party, and not use the non-sending party’s name in any mail-from or reply-to email addresses (e.g. “from” lines need to accurately identify Publisher as the sender of the email); (vii) use reply-to address that are functioning email addresses where Publisher can be contacted; and (viii) not contain false or misleading header or transmission information. Publisher warrants and represents that any message content not supplied by Tyrads will not infringe upon or violate any copyrights, trademarks or any rights of privacy or publicity or other proprietary rights of, and will not violate applicable laws or regulations or cause injury to, any third party.  (iv) Opt-Out Mechanism and Compliance: Publisher must include in each email message a clear and conspicuous explanation of how the recipient may opt-out of receiving future commercial emails from it, including a valid email address monitored by Publisher or a hyperlink that the recipient may use to do so. If Publisher uses a hyperlink, it must allow recipients to opt-out by clicking to a single web page and providing only the recipient’s email address. Publisher shall in no circumstances require any personally-identifiable V1111 information other than a recipient’s email address to effectuate the recipient’s request to opt-out. The email address or hyperlink must remain capable of receiving opt-out requests for at least thirty (30) days after the email is sent. Publisher must process opt-out requests within ten (10) days of receipt (or any other timeframe established in the future by the FTC). Publisher shall not send any commercial electronic email, including one promoting an Offer, to any recipient who has opted out 10 days or more before transmission of an email.  (v) Collection & Privacy: The email addresses to be used in connection with any Tyrads email campaign shall be: (i) Collected and maintained in compliance with all federal and state laws, regulations and rules and applicable international laws and regulations; (ii) Collected from websites and other online venues in compliance with the applicable websites’ and or other online venues’ privacy policies, and such privacy policies specifically allow for Publisher to use such email addresses as contemplated hereunder; and (iii) Obtained and collected without employing email address harvesting, dictionary attacks and/or any other deceptive or illegal act and/or practice.
4. COMPLIANCE MONITORING. Publisher agrees that Tyrads and its service providers may monitor or audit Publisher’s sites and activities under this Agreement, as well as those of Publisher’s Agents. Publisher will not block or otherwise interfere with such monitoring, and we may use technical means to overcome any methods that Publisher may use to block or interfere with such monitoring. Audits may include requests for documents and information and visits to Publisher’s facilities and those of its Agents. Publisher’s failure to promptly and reasonably comply with Tyrads’s efforts to audit its or its Agent’s compliance with this Agreement shall constitute a material breach of this Agreement.
5. MUTUAL REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other party that (i) such party has the full corporate or organizational right, power, and authority to enter into the Agreement and to perform the acts required of it, (ii) the execution of or electronic agreement to this Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, or any applicable federal, state or municipal law or regulation to which it is subject, (iii) each party shall render all services to the other party in a professional and commercially reasonable manner, in accordance with generally accepted industry standards; and (iv) each party owns or has the authority and valid license to use all intellectual property and content on its website(s) and App(s). Each party also represents and warrants that it is fully compliant with applicable privacy and information security laws. Each party shall provide clear and conspicuous notice for, and fully disclose, its respective privacy policy and practices to visitors to its website(s).
6. LIMITATION OF LIABILITY; NO ADDITIONAL WARRANTIES. THE TYRADS WEBSITES (INCLUDING ANY REPORTING SITE) AND THE OFFERS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL TYRADS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TYRADS’S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, BE GREATER THAN THE TOTAL AMOUNT PAID WITHIN THE PRIOR SIX MONTHS BY TYRADS TO PUBLISHER HEREUNDER.
7. INDEMNIFICATION. Each party (the “indemnitor”) agrees to indemnify, defend and hold harmless the other, its subsidiaries, advertisers, vendors and suppliers, and each of their respective agents, partners, officers, directors and employees (each, an “indemnitee”) from and against any third party loss, cost, claim, injury or damage (including reasonable attorneys’ fees) arising out of or related to a breach of the indemnitor’s representations or warranties made in this Agreement or a breach of the terms and conditions of this Agreement. Publisher expressly agrees to indemnify Tyrads, Advertiser, and all other indemnitees for claims arising out of or related to the conduct of any Agent. Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party that may give rise to liability of an indemnitor hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such claim and the indemnitor shall defend and/or settle the claim at its own expense and with counsel of its own selection. Indemnitee shall at all times have the right to fully participate in the defense of any claim and in any settlement which it reasonably believes would have an adverse effect on its business. The indemnitee shall make available to the indemnitor all books and records relating to the claim, and the parties to this Agreement agree to render to each other such assistance as may reasonably be requested in order to ensure a proper and adequate defense. An indemnitee shall not make any settlement of any claims which might give rise to liability of an indemnitor hereunder without the prior written consent of the indemnitor. An indemnitor shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnitee without the prior written consent of the indemnitee, such consent not to be unreasonably withheld. Nothing in this Agreement shall be construed to prevent indemnitee from retaining counsel of its choice, at the expense of the indemnitee, to represent indemnitee’s interests and participate in the defense of any such claims covered under this section.
8. CONFIDENTIAL INFORMATION. Each party agrees to use the other party’s Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party’s Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the prior written consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Publisher agrees that Tyrads may divulge Publisher’s personal and/or otherwise Confidential Information to an Advertiser upon request or to an enforcement agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Publisher has violated this Agreement or pursuant to any applicable law or regulation.
9. GENERAL.
   A. Governing Law: The rights and obligations of the parties under or arising out of this Agreement shall be governed by and construed under the laws of the State of Colorado without reference to its conflict of laws principles. Subject to and without waiving the arbitration agreement below, for purposes for any legal action brought in a court of law (such as for remedies in aid of arbitration), Tyrads and Publisher each: (i) hereby irrevocably submit to the exclusive jurisdiction in the courts located in the City and County of Denver, Colorado, or in the United States District Court of the District of Colorado for the purposes of any suit, action, or proceeding arising out of or relating to the Agreement; and (ii) hereby waive, and agree not to assert in any such suit, action or proceeding any claim that it is not personally subject to the jurisdiction or that such proceeding is brought in an inconvenient forum or that the venue of the suit, action, or proceeding is improper. The prevailing party in any such action will shall be entitled to recover all the costs and expenses of the action from the other party, including without limitation, court costs, and reasonable attorneys’ fees.
   B. Arbitration: At the option of either Party, any controversy or claim arising out of or relating to this Agreement shall be settled through binding arbitration in accordance with the Expedited Commercial Arbitration Rules of The American Arbitration Association. Any award rendered by the arbitrator(s) shall be entered as a judgment or order and may be confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and does not prevail, said party will pay all of the costs and expenses (including without limitation, court costs, arbitrators’ fees and expenses and reasonable attorneys’ fees) incurred by the other party in defending such action. The arbitrators will not be empowered to award punitive damages. The consent of the parties to arbitrate their disputes shall survive termination of this Agreement.  If this Agreement is found to not be subject to arbitration, each party herein consents, agrees, and affirmatively waives any right to a jury trial in any proceeding.
   C. 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 Internet outage, act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
   D. Relationship: The relationship of Publisher and Tyrads established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.
   E. Notice: Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by facsimile or email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein. In the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.Tyrads.com. Notices to Tyrads shall be sent to Tyrads at Level 2, Lot 19, Lazenda Commercial Centre, Phase 3, 87007, Labuan, Malaysia. Notices to Publisher shall be sent to Publisher at its most recent email address set forth in its account information on www.Tyrads.com. Publisher agrees to receive electronic communications from Tyrads, at the email address provided by Publisher. Publisher further agrees that any notice or other communication that Tyrads sends it electronically will satisfy any legal communication requirements, including that such communications be in writing.
   F. Successors and Assigns: Publisher may not assign or otherwise transfer this Agreement or any rights or obligations herein without the prior written consent of Tyrads. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
   G. Waiver: The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.
   H. Amendment: Changes, amendments or modifications of any provision of this Agreement shall be valid upon posting at www.Tyrads.com.
   I. Entire Agreement; Severability: This Agreement and any related IO’s set forth the entire agreement and understanding of the parties relating to the subject matter hereof and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
   J. Survival: Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.
   K. Interpretation: Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.