FLUENT, LLC TERMS AND CONDITIONS TO ADVERTISER INSERTION ORDER - Fluent, Inc.
Discover the Future of Commerce Media Download Report Now ×

FLUENT, LLC TERMS AND CONDITIONS TO ADVERTISER INSERTION ORDER

FLUENT, LLC

TERMS AND CONDITIONS TO 

ADVERTISER INSERTION ORDER

 

Last Updated: March 25, 2024

 

These Terms and Conditions (“Terms”) will govern and are incorporated by reference into the Insertion Order(s) (“IO”) entered into by and between Fluent, LLC (“Fluent”) and the Advertiser whose name appears on the IO and are effective as of the date set forth in the IO.  These Terms and the IO(s) are referred to as the “Agreement.”  Fluent reserves the right to modify these Terms at any time by posting the revised Terms to our website.  Advertiser’s continued use of the Services (as defined below) after any such modification will constitute Advertiser’s acceptance of such modification.  If you do not wish to accept any such modification to the Terms, you must provide notice of termination in accordance with Section 6 below.

RECITALS

Fluent provides Internet-based advertising services including ad placements, customer acquisition, lead generation, marketing and/or other related advertising services on its owned and operated websites (“Fluent Websites”) and on third-party websites (where permitted in an IO).  Advertiser wishes to engage Fluent to provide these services to Advertiser or its clients pursuant to one or more IOs.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, Fluent and Advertiser, agree as follows:

  1. IOs; DEFINITIONS

1.1  Capitalized terms used but not defined in these Terms shall have the same meanings as in the IO.  For these purposes, an IO may include an exchange of confirmed emails between the parties and may be modified by an exchange of confirmed emails between the parties.

1.2  In addition, the following terms will have the meanings set forth below:

1.2.1  “Applicable Laws, Rules and Regulations” means all applicable federal, state and local laws, statutes, rules, regulations and policies relating to online and direct marketing, telemarketing, lead generation and advertising including the Federal Trade Commission Act, Fair Credit Reporting Act, Telephone Consumer Protection Act (“TCPA”), Florida Telemarketing Act and Florida Do Not Call Act, as amended, Do Not Call Implementation Act, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”), Amended Telemarketing Sales Rule (“TSR”), California Business & Professions Code § 17529.5, Restore Online Shoppers Confidence Act, California Business & Professions Code § 17600-06, banking and consumer credit laws, Federal Trade Commission (“FTC”) rules, regulations and opinions including the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising,  rules applicable to SMS messaging including carrier rules and the CTIA Short Code Monitoring Handbook, and the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), as amended by the California Privacy Rights Act (the “CCPA”),  the Colorado Privacy Act (“CPA”), the Connecticut Data Privacy Act (“CDPA”), the Virginia Consumer Data Protection Act (“VCDPA”), the Utah Consumer Privacy Act (“UCPA”), Iowa Senate File 262 (“Iowa Data Privacy Law”) and other applicable privacy and data protection laws (“Data Privacy Laws”), as such acts, laws, rules, regulations and/or opinions may be amended, enacted, modified or supplemented during the Term of this Agreement.

1.2.2  “Call Transfer” means the transfer of a user initiated inbound call or a transfer of an outbound dialed call where the user has provided TCPA Consent, in either case where the user has consented to be transferred to an Advertiser, as specified in an IO.

1.2.3  “Campaign”  means a campaign to provide Services as specified in an IO, as such IO may be modified from time to time.

1.2.4  “Clear(ly) and Conspicuous(ly)” means that a required disclosure is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers, including in all of the following ways: (i) A visual disclosure, by its size, contrast, location, the length of time it appears, and other characteristics, must stand out from any accompanying text or other visual elements so that it is easily noticed, read, and understood; and (ii) In any communication using an interactive electronic medium, such as the Internet or software, the disclosure must be unavoidable.

1.2.5  “Commercial Email Message” means any email message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including the content on an Internet website operated for a commercial purpose). “Procure,” when used with respect to a Commercial Email Message, means to pay or provide other consideration to, or induce, another Person to initiate a Commercial Email Message on one’s behalf.

1.2.6  “Confidential Information” means any non-public or proprietary information provided by one party to the other during the term of this Agreement, including, but not limited to, information concerning the Fluent Websites’ or Fluent’s products and/or services, Leads and Related Information (as defined below in Section 1.2.9), financial affairs, partnerships, marketing plans or strategies, current or future business opportunities, technology, websites, customer relationships, and contact lists and the terms of this Agreement.  For purposes of this Agreement, Confidential Information may not include information the receiving party can document: (i) was or has become readily available to the public without restriction through no fault of the receiving party, its employees, or its agents; (ii) was received without restriction from a third party lawfully entitled to possess and disclose such information; (iii) was rightfully in possession of the receiving party without restriction prior to the other party’s disclosure of such information to the receiving party; or (iv) was disclosed pursuant to the written consent of the other party.

1.2.7  “Creative” means the advertisement and any components or elements thereof provided by Advertiser to Fluent including banner ads, emails including the body, header and subject lines, ad copy, contextual ads, call center scripts and/or other content that comprises the Creative.  Creative shall also include advertising content created by Fluent which has been approved by Advertiser prior to use and shall include the content of SMS messages.

1.2.8  “Header Information” means the source, destination, and routing information attached to a Commercial Email Message, including the originating domain name and originating email address, and any other information that appears in the line identifying, or purporting to identify, a Person initiating or Procuring the Commercial Email Message.

1.2.9  “Lead” means self-reported data records provided by a consumer having the data specified in the IO who have submitted such data on the Fluent-owned or affiliated website(s) (“Website(s)”) or third party websites and any other information obtained because of this Agreement (whether received from Fluent or from the consumer) (“Related Information”).  Advertiser understands and agrees that such individuals may be seeking general information and might not provide all related information or valid email addresses or phone numbers and might not return phone calls/messages or respond to emails.  Advertiser understands and agrees that to help protect and enforce Fluent’s rights and obligations, Fluent may include a nominal number of seeds in the Leads provided under this Agreement.

1.2.10   “Person” means a natural person, an organization, or other legal entity, including a corporation, partnership, sole proprietorship, limited liability company, association, cooperative, or any other group or combination acting as an entity.

1.2.11  “Services” shall mean the advertising, marketing, customer acquisition, lead generation, Call Transfers and consulting services provided by Fluent as specified herein and/or in an IO.  Except as otherwise may be provided in an IO, customers identified and/or provided by Fluent may not be required to purchase any product or subscribe to any service offered by Advertiser.

1.2.12  “TCPA Consent” means the affirmative “prior express written consent” within the meaning of 47 CFR §1200(f)(9), from a user providing their electronic written signature (within the meaning of the e-Sign Act), to be contacted by outbound telemarketing or text message (including autodialed calls, pre-recorded calls and/or artificial voice calls) by a Named Advertiser.

  1. SERVICES

2.1  Fluent shall provide the Services specified in the IO to the Advertiser.  Fluent may (i) drive media to Advertiser or Advertiser owned and/or controlled websites, (ii) display Creative on Fluent Websites, (iii) send emails on behalf of Advertisers, (iv) provide influencer services on social media platforms through its Infuse affiliate,  (v) provide post-transaction ad modules served/displayed on purchase confirmation pages through its TrueNorth affiliate (vi) deliver Call Transfer, (vii) deliver Leads  or (viii) provide such other Services as specified in an IO.  If the Services contemplate the delivery of Leads to Advertiser, such Leads shall be delivered in the manner and format specified in the IO or, if no format is specified, in Excel, comma delimited format.

2.2  Fluent will not be liable for any inability to regularly provide the Services and Advertiser understands and agrees that Services include self-reported data which may not be accurate and that has not been credit-screened, scored, or pre-qualified except as otherwise provided in an IO. The terms of an IO, including start and end dates, daily/monthly caps, conversion point, rate per action, reactivation of a suspended/paused Campaign and other Campaign details, may be modified by confirmed email or change order exchanged by the parties which shall be deemed incorporated into the IO and made a part of this Agreement.

2.3  Fluent will not materially edit or otherwise modify the Creative, or any component thereof, which has been supplied by Advertiser without Advertiser’s prior written consent, or as otherwise provided for in the IO.  All material modifications to Advertiser-supplied Creatives must be approved by Advertiser prior to Fluent’s use.

2.4  The Fluent Websites do not contain and Fluent will not place any Creative on third-party websites that contain, promote, reference or have links to: (i) profanity, sexually explicit material, hate material, material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or family status, illegal activities or advice, or any other material, upon two (2) business days prior written notice, deemed by Advertiser to be unsuitable or harmful to Advertiser’s reputation; (ii) web pages with no content; (iii) piracy (of software, videos, audio/music, books, video games, etc.), hacking/cracking/phreaking, content unlockers, emulators/ROMs, or violations of the intellectual property or privacy rights of others; (iv) intentionally deceptive acts or practices; (v) personal web pages, non-English language pages, free hosted pages or websites under construction; (vi) charity clicks/donations, paid to surf, Active X downloads, all affiliate links or incentivized traffic where consumers have some sort of incentive to click on Creative; or (vii) activities generally understood as Internet abuse including the sending of unsolicited bulk electronic mail or the use of spyware.

2.5  Fluent shall source and develop, and Advertiser shall use the Services, the Leads and/or Related Information, at all times in compliance with Applicable Laws, Rules and Regulations.  All marketing services, solicitations, advertising copy, and any other communications with consumers as a result of this Agreement shall be conducted in a professional manner consistent with industry standards and in compliance with Applicable Laws, Rules and Regulations applicable to the intended activities contemplated hereunder.

2.6  If either party uses third parties in connection with sourcing and developing or using Leads and Related Information, such party shall at all times be responsible for the acts, practices and omissions of all such third parties.

2.7 Advertiser shall not use the Services, either in whole or in part, as a factor in: (i) establishing an individual’s eligibility for credit; (ii) evaluating an individual for employment or promotions, reassignment or retention as an employee; (iii) connection with a determination of an individual’s eligibility for a license or other benefit granted by a governmental authority; or (iv) any other manner in which the usage of the Services or the Leads and/or Related Information, or any information contained therein, would cause such to be construed as a “Consumer Report” under FCRA, or by any regulatory authority having jurisdiction over Fluent or any of its successors, or the Leads and/or Related Information.

2.8 Advertiser shall comply with Data Privacy Laws and the Data Privacy Addendum (“DPA”) executed by the parties, which is incorporated herein by this reference.  Advertiser may not collect the Personal Information of a user if the user does not also sign up for the subject offer. Any unpurchased/rejected Leads and Related Information shall not be used by Advertiser for any purpose. Advertiser shall comply with all delete and do not sell requests received from Fluent within two (2) weeks of receipt.

  1. TELEMARKETING AND SMS MESSAGING CAMPAIGNS

            3.1  The provisions of this Section 3 are applicable only if (i) the IO specifies that the Leads include telephone numbers of consumers who have provided TCPA Consent or (ii) the IO specifies that Consenting Users may be contacted via SMS messaging.

3.2  Fluent shall seek to obtain TCPA Consent by displaying a TCPA consent form that contain all of the elements and secures the user’s signature as set forth in 47 CFR §64.1200(f)(9) which specifically includes the name of the party(ies) on whose behalf a Consenting User may be called and/or, where applicable, contacted via SMS messaging (each, a “Marketing Partner”).  Fluent shall maintain or cause to be maintained records (“TCPA Records”) of the TCPA Consents obtained from each Consenting User including obtaining a Jornaya LeadID and Active Prospect TrustedForm Certificate for each Consenting User.  It is Advertiser’s responsibility to claim the TrustedForm Certificate or Jornaya Compliance Report.  Fluent shall maintain at its expense the TCPA Records for at least five (5) years and shall provide proof that it obtained TCPA Consent to the requesting party within ten (10) days of its written request therefor.

3.3  If the Advertiser operates or uses telemarketers and/or call centers or uses SMS service providers, it shall use only use those persons (“Approved Telemarketers”) who, in its reasonable commercial judgment, have the technical capabilities and appropriate training and management that enables them to operate a call center or messaging platform in compliance with Applicable Laws, Rules and Regulations including TSR which limits the number of calls or messages to Consenting Users so as not to annoy or harass them and the rules applicable to SMS messaging including carrier rules and the CTIA rules.  Approved Telemarketers (which may include the Advertiser) may make outbound calls and/or send SMS text messages to Consenting Users only on behalf of the Marketing Partners and in compliance with Applicable Laws, Rules and Regulations including the rules applicable to the content of prerecorded telemarketing messages, maintenance and use of an operable opt-out system, call abandonment and time-of-day call restrictions.  Approved Telemarketers shall maintain at their expense  digital recordings of calls which shall be maintained for two years, or such period as may be specified in Applicable Laws, Rules and Regulations in a manner that complies with all federal and state laws which regulate recording of calls.  Advertiser shall be solely responsible for the acts and omission of its Approved Telemarketers.

3.4  If a party is contacted by a Consenting User that he/she no longer wishes to receive telemarketing calls, such party shall immediately add such user to its TCPA consent revocation list, and where necessary, shall notify the other party and an Approved Telemarketer.  The Advertiser and/or Approved Telemarketer shall promptly cease making calls and if requested, sending SMS messages to such Consenting User within five (5) days after such request.

3.5  For SMS Campaigns conducted by Fluent, the SMS messages may promote offers and/or contain a link to a website owned and operated by Advertiser or a third-party advertiser (“Offers”) sourced by Advertiser (collectively such services are referred to as the “SMS Marketing Services”) as specified in the IO.  Fluent will be paid or Fluent and Advertiser will share the revenue generated from the foregoing activities on the terms and conditions provided for in the IO.   The parties shall mutually approve the contents and the frequency of the messaging.  Fluent, through its third-party messaging platforms, shall maintain systems which record the date/time stamps of the messages and the message content, and shall maintain opt-out mechanisms which suppress users who opt-out from receiving future SMS messages.

3.5.1  Fluent and Advertiser shall jointly create the content used in such SMS messages.  The first SMS message sent to a Consenting User shall include the name of the sender and an operable opt-out in substantially the form of “TEXT STOP TO STOP.”

3.5.2 In addition to the other representations and warranties contained in Section 7, Advertiser represents and warrants to Fluent that:

(a) Advertiser has entered into written, executed, and enforceable agreements with each of its third-party advertisers and each such agreement grants the right of Advertiser to use third parties such as Fluent to generate Leads using SMS messaging, as specified herein and/or in any relevant IOs; and

(b) Such agreements require third-party advertisers to represent that they and the Offers comply with Applicable Laws, Rules and Regulations, do not violate the intellectual property rights of any third party and they will use any consumer information collected in accordance with applicable data privacy laws, rules and regulations.

  1. LEAD AND RELATED INFORMATION USE

4.1 The provisions of this Section 4 are applicable only if Fluent has agreed to provide consumer contact data including telephone numbers, email addresses and/or postal addresses, to Advertiser so that Advertiser may market to users (“Users”) using the Lead by placing outbound telemarketing calls (“Calling”), sending SMS/text messages (“Messaging”), sending email messages (“Emailing”) and/or sending direct mail (“Direct Mailing”) to such Users. For purposes of this Section 4, Calling, Messaging, Emailing and Direct Mailing are referred to, collectively, as “Contacting” or as a “Contact” method and any other Lead and/or Related Information otherwise acquired by Advertiser from Fluent in connection with the Agreement is referred to as Related Information.

4.2  If Advertiser is provided Leads, Advertiser shall provide Fluent all of its registered trade name(s), alter egos, DBA names, fictitious names, or aliases under which it conducts or has conducted business which relate to or are relevant to the use of the Leads or the Related Information.

4.3  Advertiser agrees:

4.3.1 That the Leads and Related Information will not be sold, transferred, or disclosed to any other Person or used for any purpose other than the specific purpose(s) stated in an IO or in the DPA;

4.3.2  To identify each person with whom the Advertiser will share/sell/transfer for consideration the Leads and Related Information and all purposes for which each such person will use the Leads and Related Information; and

4.3.3  That upon Fluent’s receipt of a verified User request, Advertiser will delete the Leads and Related Information within two weeks of written request therefor.

4.4  In addition to the restrictions contained in Section 2.7, Advertiser shall not engage in any of the following practices (each a “Restricted Practice”) unless otherwise expressly permitted in an IO:

4.4.1  Reject a Lead and then Contact Users using the rejected Lead or use rejected ‘duplicate’ Leads as a recency signal (rejecting Leads and then promptly Contacting those Users);

4.4.2  Append additional personally identifiable information (other than using information supplied by Users) to Leads and/or Related Information and then re-sell, license or otherwise transfer the augmented Leads and/or Related Information to third parties;

4.4.3  Call or Message Leads on behalf of a party not named as a Marketing Partner in the applicable TCPA Consent language (e.g., “I am calling on behalf of X,” where ‘X’ was not a Marketing Partner in the TCPA Consent language).  If Advertiser intends to engage in cross-selling/down-selling on a telemarketing call, Advertiser shall be responsible for obtaining the requisite consent to do so from the applicable User, and Advertiser shall be solely responsible and liable for any claims, damages, losses and/or liability arising out of or related to that consent, or lack thereof;

  • Engage in any false, misleading or deceptive practices when Contacting a User (e.g., any claim that Advertiser is affiliated with a governmental entity);

4.4.5  Engage in any abusive Calling practices as contemplated by the TSR such as Calling an excessive number of times or Calling a Lead in violation of any date/time of day restriction regulations;

4.4.6  Contact a User to market and/or promote products/services unrelated to the campaign specific product/services set forth in the Agreement (e.g., calling to market debt relief products/services when the Campaign specified in the Agreement was for diabetes-related products and/or services);

4.4.7  Message or Call a Lead more than one year after the Lead was obtained;

4.4.8  Use a Contact method not authorized in the Agreement (e.g., Messaging Users where the Agreement only authorized Calling Campaigns, or Emailing Users where the Agreement only authorized Messaging); and/or

4.4.9  Contact a User using automated voice technology, such as robocalls, pre-recorded messages, soundboard technology, AI-assisted voice technology, ringless voicemail or other automated voice methods (“Pre-Recorded Messages”) in connection with any Leads transferred to Advertiser by Fluent.

4.5       Utilizing Commercial Email Messages

4.5.1     If Advertiser is utilizing any Leads provided by Fluent to send Commercial Email Messages, all such Commercial Email Messages shall comply with Applicable Laws, Rules and Regulations and adhere to the following:

(a)        Every Commercial Email Message shall be Clearly and Conspicuously identified as an advertisement and shall include all identifiers and disclaimers required under Applicable Laws, Rules and Regulations.

(b)        Every Commercial Email Message must: (i) contain accurate Header Information, including a “from” line (the line identifying the Person initiating or Procuring the message) that accurately identifies any Person who initiated or Procured the Commercial Email Message; (ii) contain an accurate subject heading that is not likely to mislead the recipient about any material facts regarding the contents or subject matter of the Commercial Email Message; (iii) include a Clear and Conspicuous notice of the opportunity to decline to receive further Commercial Email Messages from Advertiser or any other sender on Advertiser’s behalf; (iv) Clearly and Conspicuously describe the means by which such a request to decline can be made; (v) include a functioning return email address or other Internet-based mechanism, Clearly and Conspicuously displayed, that can be used to submit a request not to receive, at the email address where the Commercial Email Message was received, future Commercial Email Messages from Advertiser or any other sender on Advertiser’s behalf, and that remains capable of receiving such requests for no less than 30 days after the transmission of the Commercial Email Message; and (vi) a valid physical postal address of Advertiser or any other sender on Advertiser’s behalf.

(c)        Advertiser shall honor unsubscribe requests within ten (10) calendar days or less and shall not send Commercial Email Messages to an email address more than ten (10) calendar days after receipt of a request from an authorized user of the email address not to receive future Commercial Email Messages from Advertiser or any other sender on Advertiser’s behalf.

4.6       Monitoring; Disciplinary Provisions.

4.6.1     Advertiser acknowledges and agrees that Fluent may monitor Advertiser’s and/or its affiliates’ use of the Leads and Related Information through seeding of the data, on its own and by using third-party products/services and/or any other methods now known or later developed, to ensure that Advertiser is not engaging in Restricted Practices.

4.6.2     Advertiser shall require that its affiliates agree, in a binding contract, not to engage in any of the Restricted Practices.  Advertiser acknowledges and agrees that it shall be jointly and severally liable for any damages where any of its affiliates engage in any of the Restricted Practices.

4.6.3     If Fluent reasonably believes that Advertiser or any of its affiliate are engaging/have engaged in a Restricted Practice (a “Violation”), Fluent may suspend delivery of Leads to Advertiser, demand that Advertiser cease all use of Leads previously provided by Fluent and/or place Advertiser on Fluent’s list of blacklisted Lead buyers, which Fluent may share with third-party lead suppliers in its sole discretion.

4.6.4 If Advertiser has a claim related to Calling or Messaging (i) a rejected Lead, (ii) a Lead which was transferred to Advertiser more than one year prior or (iii) a Lead which was contacted via Pre-Recorded Message, then (A) Fluent shall provide such proof of TCPA Consent only if Advertiser pays Fluent $1,000 per request and (B) notwithstanding any other provision of this Agreement to the contrary, Fluent will not be obligated to indemnify Advertiser for such claim however any settlement of any such claims shall be subject to Fluent’s prior written approval in each instance and must include a full release of Fluent for any and all claims or liability in a form reasonably acceptable to Fluent.

4.7  Advertiser shall provide Fluent only with the names of active offers to be included in its list of Marketing Partners in its TCPA Consent and shall inform Fluent when a name should be removed.

  1. PAYMENT

 5.1  Advertiser shall pay Fluent fees (the “Fees”) in an amount equal to, on the basis of (e.g., cost per Lead, cost per click, cost per action, revenue share, etc.) and on the payment terms specified in the IO or herein.  Advertiser shall send monthly reports to Fluent or provide online access to a tracking platform that reports the user conversion rate, number of actions and Fluent’s Fees within ten (10) days following the last day of the calendar month in which applicable actions occur or revenue is collected (the “Service Period”). The parties will use commercially reasonable efforts to confirm the number of actions or revenue and Fees owed as promptly as possible but no later than ten (10) days after numbers are available; if Advertiser does not confirm numbers within the 10-day period, Fluent reserves the right to immediately pause the Services.  Fluent shall provide Advertiser with a monthly invoice for Fees owed for the Service Period promptly following the end thereof.  Advertiser shall pay Fluent on the terms specified in the IO or thirty (30) days after the end of the Service Period, or if invoice has not been rendered by 30 days after the end of the Service Period, payment is due upon receipt of the invoice.

5.1.1  The Campaign terms specified in an IO including Start and End Dates, Daily and/or Monthly Caps, Conversion Point, cost per lead, click, action, rev share, etc., reactivation of a suspended or paused Campaign and other Campaign details, may be modified by Fluent and the Advertiser after the execution of an IO. All new Campaign(s) between Advertiser and Fluent including new territories will be covered under the original IO. Campaign modifications and/or new Campaigns will be reviewed by Advertiser and Fluent when confirming billables for each monthly Service Period. By confirming billables and/or remitting payment, Advertiser accepts all modifications to Campaign(s) terms and/or new Campaigns for the current and the following monthly Service Period. Advertiser agrees to timely review of modifications and/or new Campaigns during billable confirmation; failure to do so may result in service suspension.

5.1.2 Discrepancies identified and communicated by Advertiser after the close of each Service Period may result in a refund or credit memo issued at Fluent’s discretion.

5.2  The Fees owed to Fluent are net of any sales or use, excise or withholding taxes (other than taxes determined by Fluent’s income or franchise taxes or similar taxes).  If Fluent reasonably determines that all or any portion of the Fees are subject to sales or use taxes in any state where Fluent determines it has sales tax nexus, the parties will mutually agree on the taxable basis of and the amount such taxes owed and will report, collect and pay the required taxes to the appropriate taxing authority or Advertiser shall provide a properly completed resale certificate or other documents evidencing the availability of an exemption from the payment of such taxes. If Advertiser reports and remits the taxes, Advertiser shall provide proof thereof and copies of all reports to Fluent.

5.3 Advertiser shall maintain accurate books and records regarding the determination of revenue and payments due hereunder.  Fluent shall have the right to audit such books and records at its own expense upon reasonable prior notice no more than once a year at Fluent’s offices.  If an audit reveals an underpayment owed to Fluent, Advertiser shall pay such amount within fifteen 15 days.  If the underreporting exceeds 10% of the correct amount, Advertiser shall pay Fluent’s out of pocket audit costs.

5.4  For Campaigns which relate to a user earning credit towards qualifying for a reward on a Fluent Website such as signing up for a subscription service, installing an app or reaching a certain level on an installed app, Advertiser must report all such payable actions within one business day of the User completing such action.

5.5  Advertiser may not be obligated to pay for invalid or duplicate Leads (“Invalid Actions”), as recorded by Advertiser, which have been timely disputed as provided for in this Section 5.5.  For purposes of the Agreement, an “Invalid Action” means: (a) a lead that is a computer-generated user, such as a robot, spider, computer script or other automated, artificial, or fraudulent method designed to appear like an individual, live person; (b) an individual person that has submitted information that fails to meet all of Advertiser’s criteria as set forth in the applicable IO; or (c) a Duplicate.  For purposes of the Agreement, a “Duplicate” means advertising traffic, submitted by Fluent to Advertiser, that reproduces all or substantially all of the uniquely identifying data of any traffic that was either, previously submitted within the previous thirty (30) days to Advertiser by Fluent, and for which Advertiser has paid, or accrued an obligation to pay Fluent.  Advertiser shall send Fluent notice no more than thirty (30) days after the end of the month in which the Lead was delivered of any Leads that it is disputing.  The dispute notice shall identify the Leads disputed including, date and time stamp, subID, IP address and the grounds that such Lead(s) is (are) being disputed.  The parties shall use commercially reasonable efforts to resolve disputed Leads; disputed Leads which are determined to be invalid or duplicative, and for which Fluent is not paid, are referred to as “Scrubbed.”   Except in cases involving latent fraud, a Lead which is not disputed on a timely basis, as provided for above, shall be presumptively deemed valid, and Advertiser shall be obligated to pay Fluent for such Lead, as provided for herein.  Advertiser may not utilize any Scrubbed Lead for any purpose.

5.6  Undisputed payments not made on or prior to their applicable due date, as provided for in the IO, or as provided for in the invoice emailed to Advertiser, will bear interest at a rate of one percent (1%) per month (or the highest lawful rate, if less).  Advertiser shall be responsible for all reasonable expenses (including attorneys’ fees and collection costs) incurred and/or arising out of or related to collecting undisputed amounts owed.

  1. 6. TERM AND TERMINATION; SUSPENSION

6.1  The initial term of this Agreement will commence when the first IO between the parties takes effect, and will continue until the expiration of the last to expire IO between the parties (“Initial Term”).  Thereafter, this Agreement and applicable IOs will continue on a month-to-month basis for as long as Fluent is continuing to provide Services on any Campaign(s) governed by the IO(s), notwithstanding any end date that may be specified in the IO(s) (“Term”). Either party may terminate this Agreement and/or pause or terminate a Campaign governed by an IO, upon two (2) business days’ prior written notice to the other party. The parties understand and agree that if a Campaign governed by an IO is paused, the Term will not expire if the subject Campaign is reactivated within the ensuing three (3) month period.

6.2  If a party receives a third-party complaint or reasonably believes the other party’s actions, advertisements and/or business operations expose it to risk or damage to its business reputation, that party may suspend this Agreement immediately until such situation can be reasonably resolved. Upon receipt of a complaint, the party receiving the complaint shall provide a copy of the complaint to the other party, and the parties shall develop a mutually agreeable plan to respond.

6.3  Upon the expiration or termination of this Agreement, all licenses granted hereunder shall immediately terminate, and each party shall immediately cease using, promptly return, and purge its files of all material and any confidential information received from the other party, in connection with this Agreement.  All terms and conditions of this Agreement that, by their sense and content, are intended to survive the expiration or termination of this Agreement, shall survive, regardless of the reason of such expiration or termination.

  1. 7. REPRESENTATIONS, WARRANTIES AND COVENANTS

            7.1  Fluent and Advertiser each represent, warrant  and covenant to the other party that: (i) such party has the full corporate/company power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and except as may be limited by federal principles of equity; and (iii) it shall comply, and shall cause its marketing agents and third parties acting on its behalf to comply with Applicable Laws, Rules and Regulations.

7.2  Fluent represents, warrants and covenants to Advertiser:

7.2.1  That it will not knowingly provide any information to Advertiser, including Leads and Related Information, which were procured through fraud, identity theft or any illegal or illicit means, or in a manner not in compliance with Applicable Laws, Rules and Regulations including Data Privacy Laws and it will maintain all documents and records necessary to demonstrate compliance which will be provided upon request;

7.2.2  That it has established and implemented commercially reasonable practices and procedures designed to prevent the generation of Leads that do not comply with Applicable Laws, Rules and Regulations;

7.2.3  That it will not knowingly purchase or resell Leads that have originated from or have been generated by unsolicited commercial email, text messages or advertisements; and

7.2.4 All pages where Fluent collects Leads, pursuant to the Agreement, will contain a prominent link to Fluent’s privacy policy, which permits the transfer of the Leads and Related Information to Advertiser, as provided for herein, and is legally compliant and sufficient in every material respect.

7.2.5  If Fluent provides Leads or SMS Marketing Services,

(a) The Leads and Related Information was/will be obtained, collected and compiled without employing harvesting, dictionary attacks and/or any other deceptive or illegal act or practice and compiled using methods that fully comply with all Applicable Laws, Rules and Regulations; and

(b) The Consenting Users have consented to receiving email marketing and/or SMS messages from the third-party advertiser for the use contemplated by this Agreement and the applicable IO.

7.3  Advertiser represents, warrants and covenants to Fluent:

7.3.1  That it holds the required intellectual property rights and/or licenses to permit the use, posting, reproduction, distribution, and transmission by Fluent, and its affiliates, of the Creatives, and by Advertiser, and its affiliates, of any landing pages and other materials to which consumers can link through to from the Creatives (“Linked Content”) and any products or services that are the subject of the Creatives or the Linked Content (“Advertiser Products”);

7.3.2  The Creatives, Linked Content and Advertiser Products, and the marketing thereof, do not violate any Applicable Laws, Rules and Regulations or the intellectual or other rights of any third parties in any way;

7.3.3  That all marketing efforts, solicitations, advertising copy, and any other communications with third parties, using Leads generated under this Agreement, shall be done in a professional manner and in compliance with Applicable Laws, Rules and Regulations;

7.3.4  All pages where Advertiser or its affiliates collect consumer information by or through any Campaign pursuant to the Agreement, whether such information is collected in the Creatives or the Linked Content, contain a prominent link to Advertiser’s privacy policy, which shall be legally compliant and sufficient in all material respects;

7.3.5  The Creatives are not targeted to individuals under thirteen years of age, and do not offer products or services that are illegal for minors to buy, possess or use;

7.3.6  Advertiser will not load any computer program onto a consumer’s computer, in connection with a Campaign, except for CPI/CPE app install Campaigns and then only with the consumer’s express consent after receiving clear and conspicuous notice about the nature of the application to be downloaded;  and

7.3.7 That the Advertiser’s operation of its business and/or any business advertised using the Leads complies with Applicable Laws, Rules and Regulations; and

7.3.8 Advertiser possesses all relevant required businesses licenses, and business registrations.

  1. NO OTHER WARRANTIES

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE LEADS, RELATED INFORMATION, PRODUCTS, SERVICES, AND/OR INFORMATION PROVIDED HEREUNDER.   ADVERTISER UNDERSTANDS AND AGREES THAT THE LEADS AND RELATED INFORMATION, AND ANY OTHER INFORMATION PROVIDED HEREUNDER REPRESENTS SELF-REPORTED INFORMATION FROM INDIVIDUAL CONSUMERS, AND IS PROVIDED ON AN AS-IS BASIS.  FLUENT MAKES NO WARRANTY AS TO WHETHER ADVERTISER WILL REALIZE ANY PROFIT OR RECEIVE ANY PAYMENT FROM THE LEADS PROVIDED.  UNLESS SET FORTH OTHERWISE HEREIN, BOTH PARTIES DISCLAIM ANY WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW, OR IN EQUITY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, OR PERFORMANCE, OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.

  1. LIMITATION OF LIABILITY

EXCEPT FOR INDEMNIFICATION OBLIGATIONS AND AS OTHERWISE PROVIDED FOR HEREIN, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND (II) FLUENT SHALL NOT  BE LIABLE TO ADVERTISER FOR AN AMOUNT GREATER THAN THE AMOUNTS PAID TO FLUENT BY ADVERTISER DURING THE SIX MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM.

  1. INDEMNIFICATION

10.1  Advertiser agrees to indemnify, defend, and hold harmless Fluent and its officers, directors, employees, representatives, agents, subsidiaries, and affiliates, from and against any and all third party claims, actions, liabilities (including all reasonable costs, expenses, and attorneys’ fees) arising from, or in connection with, (i) any claim that Advertiser’s use of the Leads or Related Information violates any Applicable Law, Rule Regulation, privacy or publicity right, intellectual property right, or any other right, except to the extent that such claim is based on any action or omission of Fluent; (ii) the Advertiser Products; or (iii) Advertiser’s breach of any of its obligations, representations, or warranties under this Agreement including the obligation set forth in Section 5.2 to report, collect, and pay the applicable sales or use taxes in any state.

10.2  Fluent agrees to indemnify, defend, and hold harmless Advertiser and its officers, directors, employees, representatives, agents, subsidiaries, and affiliates, from and against any and all third party claims, actions, liabilities (including all reasonable costs, expenses, and attorneys’ fees) arising from or in connection with (i) any claim that the products and/or services provided by Fluent hereunder violate any Applicable Law, Rule or Regulation or publicity right, intellectual property right, or any other right, except to the extent that such claim is based on any action or omission of Advertiser; or (ii) Fluent’s breach of any of its obligations, representations, or warranties under this Agreement.  Notwithstanding the foregoing, if there is a claim that a Lead sold by Fluent for a telemarketing Campaign to Advertiser did not have TCPA Consent, if Fluent can prove with competent evidence that it obtained TCPA Consent for the lead that gave rise to the claim, then Fluent will support Advertiser in defending the claim, and will provide it with documentary proof of valid TCPA Consent, but will not defend, indemnify or hold Advertiser harmless unless there is a final determination by a court of competent jurisdiction, or in the context of settlement negotiations, that Fluent did not obtain valid TCPA Consent.  In that event, Fluent shall fully indemnify, defend and hold Advertiser from all Losses associated with such Lead.

10.3  The party seeking indemnification (“Indemnified Party”) shall promptly notify the other party (“Indemnifying Party”) in writing of all such claims and shall accommodate the Indemnifying Party’s reasonable requests for cooperation and information.  The Indemnified Party shall agree to Indemnifying Party’s sole control over the defense and any settlement of such claims; provided, however, that the Indemnifying Party may not agree to any settlement that could adversely affect the rights or interest of the Indemnified Party without their express written consent.  The foregoing indemnity obligations may not apply in the event, and to the extent, that such claim is based on any action or omission of the Indemnified Party.

  1.      NO ASSIGNMENT

Neither party may assign its rights or obligations under this Agreement without written consent from the other party, such consent not to be unreasonably withheld or delayed; provided, however, nothing shall prevent either party from assigning its rights or obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of all or substantially all of the assets of the business of the assigning party, or any other transaction in which ownership of more than fifty percent (50%) of the assigning party’s voting securities is transferred.

  1. Agency

If Advertiser is an agency or acting as a broker on behalf of the advertiser whose goods or services are being advertised or on whose behalf Fluent is providing Services and/or generating Leads (such persons are referred to as a “Client”), Advertiser acknowledges and agrees that it is acting as authorized agent on the Client’s behalf, including for making payments to Fluent hereunder, and Advertiser and Client will be jointly and severally liable for all obligations hereunder.  Upon payment of funds from Client to Advertiser, Advertiser shall hold the invoiced funds in a segregated account for Fluent’s benefit until Advertiser remits payment to Fluent in accordance with the terms herein.  If a Client fails to pay Fluent for Services rendered hereunder, Advertiser shall use commercially reasonable efforts to collect and pay over amounts owed.  If notwithstanding those efforts, the Client does not pay for such Services, Fluent may pursue collection directly from such Client.

  1. Force Majeure

Neither party shall be liable for delays or nonperformance of this Agreement if such delay or nonperformance was caused by: (i) act of God, act of war, strike, fire, natural disaster, or accident; (ii) lack of availability of materials, fuel, or utilities; or (ii) any other cause beyond such party’s control.

  1. CONFIDENTIAL INFORMATION

Except to the extent an applicable governmental law, order, decree, regulation, rule, or process requires disclosure, for a period of one (1) year after the expiration of the Term the party receiving Confidential Information (“Recipient”) agrees: (a) to safeguard the Confidential Information and prevent any unauthorized access, reproduction, disclosure and/or use of any of the Confidential Information using reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information; (b) to disclose the Confidential Information only to those affiliates, officers, directors, employees and/or agents and advisors of the Recipient who need to know such information to consider and/or carry out the purposes of this Agreement; (c) not to sell, lease, license, disclose or otherwise transfer any Confidential Information to any third party; and (d) to notify the disclosing party (“Discloser”) promptly in writing or email of any unauthorized use or disclosure of the Confidential Information.  Recipient agrees that the Discloser exclusively owns and holds all rights to its Confidential Information.  Recipient shall be responsible and liable for any unauthorized disclosure or use of the Confidential Information by its representatives. Unless reasonably required otherwise, if disclosure is required, the receiving party shall provide written notice thereof to the disclosing party as soon as reasonably possible and shall reasonably cooperate with the disclosing party in resisting the disclosure of, or obtaining confidential treatment for, such Confidential Information.

Upon the completion of the Services, or upon the Discloser’s written request, Recipient shall at its choosing, (i) promptly return to the Discloser all documents (paper, electronic or otherwise) embodying Confidential Information and all notes, analyses, compilations, studies, interpretations or other documents prepared in connection therewith which contain or are based on Confidential Information and/or (ii) delete or destroy and certify in writing  of such to the Discloser all documents (paper, electronic or otherwise) embodying Confidential Information and all notes, analyses, compilations, studies, interpretations or other documents prepared in connection therewith which contain or are based on Confidential Information, provided, however, that Recipient may retain copies of any Confidential Information necessary to comply with applicable law, rule or regulatory authority or internal document retention policy and not be required to destroy, delete, or modify any backup tapes or other media made pursuant to automated archival processes in their ordinary course of business provided such retained Confidential Information continues to be subject to this agreement.

  1. NOTICES

All notices, demands and other communications hereunder must be in writing and shall be deemed to have been duly given (i) if mailed by certified mail, postage prepaid, on the date three days from the date of mailing, (ii) if delivered by overnight courier, when received by the addressee or (iii) if sent by facsimile, on receipt by the sender of electronically generated confirmation of transmission, or (iv) if sent by email, on receipt by the sender of electronically generated confirmation of transmission and a read receipt; in each case to the parties at the addresses set forth below:

Fluent:

300 Vesey Street, Floor 9

New York, New York 10282

legalnotices@fluentco.com

ATTN: Daniel J. Barsky

 

Advertiser:

 

At the address set forth in the IO

  1. Miscellaneous

These Terms and all applicable IOs and addenda attached thereto: (i) shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law; and (ii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, electronic or otherwise, between the parties.  If any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect.  The parties consent to the exclusive jurisdiction of the state and federal courts having jurisdiction over New York County, New York and waive the right to trial by jury.  Each party is an independent contractor.  Except as set forth in this Agreement, neither party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the party’s prior written consent.  This Agreement may be executed in two or more counterparts, which together shall constitute a single agreement.  This Agreement and any documents relating to it may be executed and transmitted to any other party by facsimile, which facsimile shall be deemed to be, and utilized in all respects as, an original, wet-inked manually executed document.  Signatures provided by facsimile transmission or in PDF format sent by electronic mail shall be deemed to be original signatures.