Master Publisher Terms and Conditions

Last Updated June 30, 2023

These Master Publisher Agreement Terms and Conditions (“Terms and Conditions”) apply to any IO related to the Services (as such capitalized terms are defined herein below) that references to these Terms and Conditions.

To the extent that there is any conflict or inconsistency between these Terms and Conditions and any IO, the terms of such IO shall govern unless otherwise expressly stated to the contrary in these Terms and Conditions.

1. 1. Publisher Agreement Insertion Order. For purposes hereof, “IO” shall mean the order form, subscription form, statement of work or other written document that evidences the purchase by PandoLogic, Inc. (“Company”) of Services from a contracting party (“Publisher”) identified on each such IO. Each IO is governed by and incorporates these Terms and Conditions, and all such IOs and these Terms and Conditions are collectively referred to herein as the “Agreement.”   These Terms and Conditions set forth the parties’ respective rights and obligations concerning Publisher’s generation of online click traffic (collectively, “Clicks”) for Company.
   2. Services.In connection with generating traffic hereunder, and depending on which method is authorized in the IO, Publisher may: (a) send open positions of employment or employers seeking work candidates as provided by Company (“Jobs”) via e-mail (“Publisher E-mail”), to individuals in Publisher’s proprietary database(s) (collectively, “Publisher Database”); (b) syndicate Jobs IO (“Publisher Syndication”) and (c) feature Jobs on websites owned and/or operated by Publisher (collectively, “Publisher Websites,” together with the Publisher E-mail, Publisher Syndication, and Publisher Database, the “Publisher Media”). For purposes of the Agreement, the activities engaged in by Publisher in (a) through (c) of this Section 2 shall be referred to as the “Services.”
   3. Marketing Restrictions.  
      1. Publisher will not use inappropriate content on, or in connection with, the Publisher Media including, without limitation, content that promotes or contains language referring to: (i) the use of alcohol, tobacco or illegal substances, nudity, sexually explicit material, pornography, profanity, expletives or inappropriate language; (ii) illegal or unethical activity, deceptive acts, material that promotes violence, “spam,” mail fraud, gambling, pyramid schemes or illegal advice; (iii) libelous, defamatory, infringing, false or misleading content, or other content that is contrary to public policy; (iv) hate speech and/or any material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation; (v) piracy (of software, videos, audio/music, books, video games, etc.), hacking/cracking/phreaking or distribution of copyrighted materials; (vii) content that violates the rights of others, such as intellectual property or privacy rights;.
      2. For purposes of the Agreement, any reference to Publisher shall include any and all in-house and/or third party marketing agents, partners, affiliates and/or publishers providing services and/or Clicks by and through Publisher in connection with the Click-generation Services contemplated hereunder (collectively, “Sub-Marketers”).   

1. 4. Payment. Company shall pay Publisher by the method set forth in the IO for each Valid Click (as defined below) purchased by Company hereunder.  Unless expressly set forth to the contrary in the IO, Company shall make payment for Valid Clicks within sixty (60) days of receiving an invoice based off Company’s Publisher dashboard. Unless expressly set forth to the contrary in the IO, Publisher shall provide Pando with an agency discount of fifteen percent (15%).
   5. Click Definition.
      
      1. The total number of Clicks generated by Publisher shall be determined based on Company’s tracking and reporting, which determination shall be final and binding upon the parties. Publisher agrees that it shall not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by Company. For purposes of the Agreement, a “Valid Click” shall mean a Click that is not an Invalid Click or Fraudulent Click (as those terms are defined below).  An “Invalid Click” means a Click submitted by Publisher to Company that is a duplicate (a click occurring from the same IP Address in less than 30 minutes), expired (a click that occurs 24 hours after the Job(s) have been removed from the feed) and a click that results from robots (clicks that are not from a real user).
      2. Clicks generated in connection with a violation of Applicable Law (as defined below) and/or any of the terms or conditions of the Agreement including where the subject Click has been generated by SMS text messaging Services in violation of the TCPA or by email marketing Services in violation of the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”) and/or Canada’s Anti-Spam Legislation (“CASL”). For purposes of the Agreement, a “Fraudulent Click” means a Click generated by Publisher that is the product of incentivized marketing, fraud or manipulation on the part of Publisher and/or any of its Sub-Marketers.
   6. Confidentiality. During the Term, and until such time as the “Confidential Information” (as defined below) is no longer protectable under Applicable Law, neither party will use or disclose any “Confidential Information” of the other party except as specifically contemplated herein. “Confidential Information” shall mean all information, materials or concepts confidential or proprietary to a party (the “disclosing party”) relating to its business, products or customers which is received or learned by the other party (the “receiving party”) or any of receiving party’s employees, officers, directors, representatives or agents (collectively, “Representatives”) through or as a result of the receiving party’s relationship with the disclosing party or access to the disclosing party’s premises or personnel. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this Section 6 by the receiving party; (iii) is lawfully received by the receiving party on a nonconfidential basis from a third party without breach by such third party of any legal, contractual, or fiduciary obligation to the disclosing party; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party’s Confidential Information to the disclosing party.
   7. Term and Termination. The term of an IO is the period of time that begins on the IO Start Date and, unless terminated sooner as provided herein, will continue until the IO End Date, both dates as specified on the IO (the “Term”).  The term of these Terms and Conditions and the Agreement shall continue as long as an IO referencing or incorporated into these Terms and Conditions remains valid and in effect.  Termination or expiration of any IO shall leave other IOs unaffected.  Either party may terminate the Agreement at any time during the Term, with or without cause, upon five (5) business days’ prior written notice to the other party.  Either party may terminate the Agreement immediately upon written notice if the other party materially breaches any provision of the Agreement which remains uncured for a period of fifteen (15) days from the date of written notice of such breach.
   8. Representations and Warranties.  Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the execution of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms; and (d) its marketing activities will neither infringe upon any copyright, trademark, U.S. patent or any other third party right, nor knowingly violate any Applicable Law or regulation.

      Publisher hereby represents and warrants that: (i) it, as well as its Services, Publisher Media, and Sub-Marketers will comply with all applicable state and federal laws, rules, Federal Trade Commission and Federal Communications Commission implementing regulations, international laws, rules and regulations including, but not limited to (and any state law analog), the FTC Guidelines, the Gramm-Leach Bliley Act, the Federal Trade Commission Act, CAN-SPAM, CASL, the TCPA, the Federal Communications Act, the TSR, and laws governing the National Do-Not-Call Registry, and any and all rules and regulations promulgated under any of the foregoing (collectively, “Applicable Law”); and (ii) any and all Publisher Websites and Publisher E-mail shall, at all times during the Term, link to a privacy policy (“Publisher Privacy Policy”) that complies with all Applicable Law.
      

   9. Indemnification.  Publisher agrees to indemnify, defend and hold harmless Company, its subsidiaries, agents, contractors, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any: (a) breach of the Agreement by Publisher; (b) claim related to the Services, Publisher Privacy Policy and/or Publisher Media; and/or (c) act or omission of any Sub-Marketer.  Company agrees to indemnify, defend and hold harmless Publisher its subsidiaries, agents, contractors, officers, directors, members and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any third party claim due to Company’s breach of the Agreement.
   10. Agency of Record Publisher recognizes that Company holds the Agency of Record (“AOR”) for certain Company clients.  At Company’s request, Publisher will remove any content from distribution for which Company holds the AOR.  
   11. Limitation of Liability.  NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY.  THE PARTIES ACKNOWLEDGE THAT THE MUTUAL PROMISES CONTAINED HEREIN REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.  COMPANY’S LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED TWELVE (12) MONTHS OF THE FEES PAID TO COMPANY BY ADVERTISER DURING THE TERM.
   12. Waiver.  No delay or failure by either party to exercise any right under the Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided for herein.  A waiver of default shall not be a waiver of any other or subsequent default.
   13. Governing Law/Venue.  The Agreement shall be construed in accordance with and governed by the laws of the State of California. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of either the United States District Court for the Southern District of California or any California State Court of competent jurisdiction, located in Orange County, and further agrees to comply with all the requirements necessary to give such court jurisdiction.  
   14. Entire Agreement.  The Agreement, which includes these Terms and Conditions together with any applicable IOs, contains the entire agreement between the parties.  No modification of the Agreement shall be effective unless in writing and executed by an authorized officer or representative of both parties.
   15. Severability.  If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any Applicable Law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
   16. Relationship of the Parties.  The relationship between Company and Publisher established by the Agreement is solely that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.  Neither party shall make any representation, warranty or covenant, or assume or create any obligation, on the other party’s behalf.  Each party shall be solely responsible for the actions of its respective employees, agents and representatives. Both parties acknowledge that Publisher’s employees and Sub-Marketers are not nor shall they be deemed to be employees or independent contractors of Company.  
   17. Assignment.  Neither party shall, without the prior written consent of the other party, assign its rights or delegate its duties under the Agreement, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either party may, in the event of a merger, acquisition or sale of substantially all of such party’s assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other party. The provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
   18. Force Majeure.  Each party shall be excused from the performance of its obligations under the Agreement and any delay or failure in performance by such party shall not be grounds for termination of the Agreement for cause or give rise to any liability for damages, to the extent that such party is prevented from performing due to a cause that is beyond its reasonable control including, but not limited to, an act of God, act or omission of the other party, act of any government or regulatory body, fire, explosion, flood, earthquake or other natural or man-made disaster, epidemic, pandemic, sabotage, war, riot, civil disturbance, strike, labor dispute, loss of electrical or other power or telecommunications equipment (each a “Force Majeure Event”).  Each party agrees to use commercially reasonable and diligent and determined efforts to minimize the length and effects of delays that occur due to the occurrence of a Force Majeure Event.  Each party agrees to provide prompt notice to the other party to the extent such party is relying or expects to rely on the provisions of this subsection to excuse its delay or failure to perform.