REWARDSFLOW, LLC TERMS AND CONDITIONS TO ADVERTISER INSERTION ORDER

REWARDSFLOW, LLC

TERMS AND CONDITIONS TO 

ADVERTISER INSERTION ORDER

Last Updated: June 4, 2024

These Terms and Conditions (“Terms”) will govern and are incorporated by reference into the Insertion Order (“IO”) entered into by and between RewardsFlow, LLC, a wholly owned subsidiary of Fluent, LLC (“Fluent”) and Advertiser whose name appears on the IO (“Advertiser”) and are effective as of the date set forth in the IO.  These Terms and the IO are referred to as the “Agreement.”  If there is a conflict between these Terms and an IO, the IO shall prevail. 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 4 below.

RECITALS

Fluent provides Internet-based lead generation, customer acquisition, media and/or other related services.  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.           DEFINITIONS AND INTERPRETATION

1.1               Capitalised terms used but not defined in these Terms shall have the same meanings as in the IO.

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

1.2.1         “Applicable Laws” means Country specific laws, statutes, rules, regulations and policies applicable to either party including (i) General Advertising Laws – online and direct marketing, lead generation, advertising and consumer protection, (ii) Data Security and Privacy, and laws applicable to specific advertising modalities including (iii) Commercial Email, (iv) Telemarketing, and (v), SMS/Text, as set forth in Schedule 1;

1.2.2        “Call Transfer” means a transfer of a user initiated inbound call or a transfer of an outbound dialed call where the user has provided Valid Consent (as defined below) to receive telemarketing, 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       “Confidential Information” means  any non-public or proprietary information provided by one party to the other during the Term, including, but not limited to, information concerning the Websites’ or Fluent’s products and/or services, Leads and Related Information (as defined below in clause 1.2.7), 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 shall 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;

1.2.5        “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;

1.2.6         “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;

1.2.7       “Invalid Actions” 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;

1.2.0         “Lead” means self-reported data records provided by a consumer having the information/data specified in the IO that has submitted such information pursuant to a request on the Fluent-owned or affiliated website (“Website”) and any other information obtained because of this Agreement (whether received from Fluent or from the consumer) (“Related Information”);

1.2.9        “Scrubbed” means disputed Leads which are determined to be invalid or duplicative, and for which Fluent is not paid; and

1.2.10    “Services” means 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.

1.3               Clause headings shall not affect the interpretation of this Agreement.

1.4            A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and a reference to any party shall include that party’s personal representatives, successors and permitted assigns. A reference to a company shall include any company, corporation,  holding company, subsidiary or other body corporate, wherever and however incorporated or established.

1.5            Unless the context otherwise requires, words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders.

1.6             A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.7              A reference to writing or written includes fax and email.

1.8               Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.9            A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.

1.10          Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.            SERVICES AND DATA USE

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, (vi) provide syndicated ad module solutions served/displayed on mutually agreed upon partner media properties, (vii) deliver Call Transfers, or (viii) provide other Services as specified in an IO.   Except as otherwise provided in the attached IO, Fluent shall use its reasonable endeavours to deliver Leads daily, if available, to Advertiser in the format specified in the IO or, if no format is specified, in CSV format. 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.

2.2            Advertiser acknowledges and accepts that Fluent shall have no liability to it for any inability to regularly provide Leads to Advertiser.

2.3            Advertiser acknowledges and accepts that Leads have not been credit-screened, scored, or pre-qualified and contain self-reported information which may not be accurate.

2.4            Advertiser acknowledges and accepts that consumers shall not be under any obligation to purchase any product or service or participate in any program of Advertiser.

2.5            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.

2.6             In lieu of providing Leads and as provided for in an IO, Fluent may drive media to Advertiser or Advertiser owned and/or controlled websites.

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

2.8            Fluent shall use its reasonable endeavours to not place any Creative that the Advertiser makes available to Fluent in connection with its performance under the Agreement on Websites that contain, promote, reference or have links to:

2.8.1         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 deemed by Advertiser to be unsuitable or harmful to Advertiser’s reputation;

2.8.2         web pages with no content;

2.8.3         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;

2.8.4         intentionally deceptive acts or practices;

2.8.5         personal web pages, non-English language pages, free hosted pages or websites under construction;

2.8.6         charity clicks/donations, paid to surf, Active X downloads, all affiliate links or incentivised traffic where consumers have some sort of incentive to click on Creative; or

2.8.7         activities generally understood as Internet abuse including the sending of unsolicited bulk electronic mail or the use of spyware.

2.9            Advertiser shall use any Leads (including any Related Information) provided hereunder only for the purposes of Advertiser’s own marketing and may not resell, license or otherwise transfer Leads and Related Information to its customers except as otherwise provided for in an IO.

2.10          Any unpurchased/rejected Leads and Related Information shall not be used by Advertiser for any purpose whatsoever.

2.11          Fluent shall source and develop, and Advertiser shall use, the Leads and/or Related Information at all times in compliance with Applicable Laws. All marketing efforts, 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 applicable to the intended activities contemplated hereunder.

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

2.13          Advertiser shall not use the Leads and/or Related Information, either in whole or in part, as a factor in:

2.13.1       establishing an individual’s eligibility for credit (including by the undertaking of searches of an individual’s record with one or more credit reference agencies);

2.13.2       evaluating an individual for employment or promotions, reassignment or retention as an employee;

2.13.3       connection with a determination of an individual’s eligibility for a licence or other benefit granted by a governmental authority; or

2.13.4       any other manner in which the usage of the Leads and/or Related Information, or any information contained therein, may be interpreted as an endorsement or authorisation of any individual.

3. PAYMENT

3.1            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 if no payment terms are specified. 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.

3.1.1. 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.

3.1.2 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.

3.2           Advertiser shall not be obligated to pay for Invalid Actions, as recorded by Advertiser, which have been disputed in accordance with clause 3.3.

3.3            Advertiser shall send Fluent notice no more than fifteen (15) 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 is being disputed.

3.4            The parties shall use commercially reasonable efforts to resolve disputed Leads.

3.5            Save for cases involving latent fraud, a Lead which is not disputed in accordance with clause 3.3, shall be deemed valid, and Advertiser shall be obligated to pay Fluent for such Lead, as provided for herein.

3.6            Advertiser shall not utilise any Scrubbed Lead for any purpose.

3.7            Advertiser understands and agrees that the Leads provided hereunder pertain to individuals that have no obligation to Advertiser. Except as otherwise may be provided in an IO, such individuals shall not be required to purchase any product or subscribe to any service offered by Advertiser. Advertiser understands and agrees that such individuals may be seeking general information and might not provide all related information or valid phone numbers and might not return phone calls/messages. Advertiser further understands and agrees that, to the extent not otherwise an Invalid Action, the presence of any, or all, of these circumstances, or related circumstances, will not affect Advertiser’s obligation to pay the Fees in accordance with clause 3.1 above.

3.8          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.

4.            TERM, TERMINATION AND SUSPENSION

4.1           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 six (6) month period.

4.2            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.

4.3          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.

4.4            Upon receipt of a third-party complaint, the party receiving the complaint shall where permitted to do so by Applicable Laws provide a copy of the complaint or otherwise details of the applicable complaint which are permitted to be shared under Applicable Laws to the other party, and the parties shall seek to develop a mutually agreeable plan to respond.

4.5            Upon the expiration or termination of this Agreement:

4.5.1         all licenses granted hereunder shall immediately terminate;

4.5.2         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;

4.5.3         Advertiser shall immediately pay to Fluent all of Fluent’s outstanding unpaid invoices and interest and, in where no invoice has been submitted, Fluent may submit an invoice, which shall be payable immediately on receipt; and

4.5.4         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.

4.6            Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

5.            REPRESENTATIONS, WARRANTIES AND COVENANTS

5.1            Fluent and Advertiser each represent and warrant to the each other party that:

5.1.1         it has the power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder;

5.1.2         its obligations under this Agreement are valid and binding and are enforceable against it in accordance with the terms of this Agreement; and

5.1.3         it shall comply, and shall cause its marketing agents and third parties acting on its behalf to comply with Applicable Laws.

5.2               Fluent represents, warrants and undertakes to Advertiser that:

5.2.1         it will use its reasonable endeavours to 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, and it will maintain all documents and records necessary to demonstrate compliance which will be provided upon request;

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

5.2.3         it will use its reasonable endeavours to not knowingly purchase or resell Leads that have originated from or have been generated by unsolicited commercial email, text messages or advertisements; and

5.2.4         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, truthful, accurate and sufficient in every respect.

5.3               Advertiser represents, warrants and undertakes to Fluent that:

5.3.1         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”);

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

5.3.3         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;

5.3.4         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, truthful, accurate and sufficient in every respect;

5.3.5         the Creatives are not targeted to individuals under eighteen (18) years of age, and do not offer products or services that are illegal for minors to buy, possess or use;

5.3.6         it will not load any computer program onto a consumer’s computer, in connection with a campaign, without Fluent’s prior approval and the consumer’s express consent after receiving clear and conspicuous notice about the nature of the application to be downloaded, such as in the case of Leads sold on a CPI basis; and

5.3.7         its operation of its business and/or any business advertised using the Leads complies with Applicable Laws.

6.            DIRECT MARKETING

6.1            The provisions of this clause 6 are applicable only if: (i) the IO specifies that the Leads include telephone numbers of consumers who have provided their consent  in compliance with Applicable Laws, which includes Applicable SMS Laws as specified on Schedule 1  (a “Valid Consent”) to be called/contacted by telephone/SMS message or on behalf of the Advertiser (“Consenting Users”), or (ii) the IO specifies a drive-to-site campaign where the Advertiser will be seeking to obtain Valid Consent so it may make outbound telemarketing calls and/or send text messages to Consenting Users.  If the IO specifies that Consenting Users may be contacted via SMS messaging, the Valid Consent shall include appropriate language to permit use of SMS messaging and should comply with the requirements of the GDPR and Applicable Laws.

6.2            The Valid Consent obtained by the party responsible for securing such consent (“Responsible Party”) shall comply with all of the elements set out in the Applicable Laws and must specifically include the name of the party on whose behalf a Consenting Consumer may be called and/or, where applicable, contacted via SMS messaging (each, a “Named Advertiser”).  The Responsible Party shall maintain or cause to be maintained records (“Consent Records”) of the Valid Consents obtained from each Consenting User, including the date and time stamp when the Valid Consent was obtained, the IP address/device ID of the Consenting User, the URL for the Valid Consent form and the contents of the Valid Consent including the Named Advertiser and such other information, and/or documentation, that is reasonably necessary to prove in a regulatory or judicial proceeding, or in discussions that could reasonably be expected to predate such a proceeding, that the Responsible Party secured legally sufficient Valid Consent from the Consenting User to permit  the telemarketing calls and/or contact via SMS messaging, where applicable, by or on behalf of the Named Advertiser to such Consenting User.  The Responsible Party shall maintain the Consent Records for at least 7 years, and shall provide such Consent Records to the requesting party within 10 days of its written request therefor. The Responsible Party is solely responsible for all costs associated with acquiring and maintaining the Consent Records.

6.3            Advertisers shall vet telemarketers, call centres and SMS messaging companies and 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 centre and/or send SMS messaging in compliance with Applicable Laws..  The Approved Telemarketer (which may include the Advertiser) may make outbound calls and/or send SMS text messages to Consenting Users only on behalf of the Named Advertisers and in compliance with Applicable Laws including the rules applicable to the content of pre-recorded telemarketing messages, maintenance and use of an operable opt-out system, call abandonment and time-of-day call restrictions.  Approved Telemarketers shall maintain digital recordings of calls which shall be maintained for two years, or such period as may be specified in Applicable Laws and in accordance with the principle of ‘data minimisation’ contained in Article 5 of the GDPR.  Approved Telemarketers shall ensure that the maintaining of digital records is done in a manner that complies with all laws and regulations which regulate recording of calls. Advertiser is solely responsible for all costs associated with acquiring and maintaining the recordings. Advertiser shall be solely responsible for the acts and omission of its Approved Telemarketers.

6.4            If a party is contacted by a Consenting User that he/she no longer wishes to receive telemarketing calls or SMS messaging, such party shall obey its obligations under Applicable Laws including immediately adding such user to its Valid Consent suppression list, and shall notify the other party and, where necessary, an Approved Telemarketer.  The Advertiser and/or Approved Telemarketer shall promptly cease making calls to such consumer in accordance with Applicable Laws, but no later than five days after the consumer has made such request.

6.5            For SMS campaigns, the parties shall mutually approve the contents and the frequency of the messaging which shall comply with Applicable Laws.  The party sending the SMS messages 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.

7.            NO OTHER WARRANTIES

7.1            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.

7.2            Advertiser understands and agrees that the Leads and Related Information, and any other information provided hereunder represents self-reported information from individual consumers, and are provided on an as-is basis.

7.3            Fluent makes no warranty as to whether Advertiser will realise any profit or receive any payment from the Leads provided.

7.4            unless expressly set out in this Agreement, all warranties, conditions and other terms (including those relating to fitness for a particular purpose, satisfactory quality, and description) implied by statute, common law, trade custom and industry practice are, to the fullest extent permitted by law, excluded from this Agreement.

8.            LIMITATION OF LIABILITY

8.1            Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury caused by its negligence or the negligence of its officers, employees, contractors or agents, for fraud or fraudulent misrepresentation nor where liability cannot be excluded or limited as a matter of law.

8.2            In no event shall either party be liable for any special, indirect, incidental, consequential, punitive, or exemplary loss, damage, or expense in connection with this agreement, including, without limitation, damages relating to loss of profits, income, or goodwill, even if the other party is aware of the possibility of damages.

8.3            Subject to clauses 8.1 and 8.2 and except for Fluent’s indemnification obligations under clause 9.2, the aggregate liability of Fluent (whether in contract, tort (including for negligence) or for breach of statutory duty (howsoever arising), misrepresentation or otherwise) shall not exceed the fees paid and payable by Advertiser to Fluent hereunder in the preceding six months.

9.            INDEMNIFICATION

9.1            Advertiser shall indemnify and hold harmless (and keep indemnified and held harmless) Fluent and its officers, directors, employees, representatives, agents, subsidiaries, and affiliates, from and against any and all third party claims, actions, liabilities, costs, expenses, damages, losses, interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by Fluent, arising from, or in connection with:

9.1.1         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; and/or

9.1.2         the Advertiser Products and/or content provided by Advertiser or its advertisers to its customers and/or a Lead.

9.2            Fluent shall indemnify and hold harmless (and keep indemnified and held harmless) Advertiser and its officers, directors, employees, representatives, agents, subsidiaries, and affiliates, from and against any and all third party claims, actions, liabilities, costs, expenses, damages, losses, interest, penalties and legal costs and all other professional costs and expenses suffered or incurred by Advertiser, arising from, or in connection with 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. Notwithstanding the foregoing, if Fluent is the Responsible Party and there is a claim that a Lead sold by Fluent to Advertiser did not have Valid Consent, if Fluent can prove with competent evidence that it obtained Valid 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 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 Consent.  In that event, Fluent shall fully indemnify, defend and hold Advertiser from all Losses associated with such Lead.

9.3            The party seeking indemnification (“Indemnified Party”) shall promptly notify the other party (“Indemnifying Party”) in writing of all such claims and shall, to the extent permitted by Applicable Laws, accommodate the Indemnifying Party’s reasonable requests for cooperation and information. The Indemnified Party shall not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the Indemnifying Party. The Indemnified Party shall agree to Indemnifying Party’s sole control over the defence and any settlement of such claims; provided, however, that the Indemnifying Party shall not agree to any settlement that could adversely affect the rights or interest of the Indemnified Party without their express written consent. Once the Indemnifying Party tenders defence, The Indemnified Party shall have the right to participate in the defence and/or retain separate counsel at its own expense.  The foregoing indemnity obligations shall not apply in the event, and to the extent, that such claim is based on any action or omission of the Indemnified Party.

10.          NO ASSIGNMENT

Neither party shall assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement without prior written consent from the other party, such consent not to be unreasonably withheld or delayed.

11.          AGENCY

If Advertiser is an agency or acting as a broker on behalf of the advertiser whose Advertiser Products are being advertised or on whose behalf Fluent is generating Leads (such persons are referred to as a “Client”), Advertiser acknowledges and agrees that it is acting as authorised 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.

12.          FORCE MAJEURE

Neither party shall be liable for delays or non-performance of this Agreement if such delay or non-performance 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. The foregoing shall not affect Advertiser’s obligation to pay Fluent the Fees in accordance with clause 3.1

13.          CONFIDENTIAL INFORMATION

During the term and for a period of one (1) year after the expiration of the term, each party will keep strictly confidential all Confidential Information disclosed by the other party, except to the extent an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or the rules of any listing authority or stock exchange requires disclosure. Where such disclosure is required, the receiving party shall, to the extent legally permissible, 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.

14.          NOTICES

All notices, demands and other communications hereunder shall be in writing and sent to the addresses set forth in the IO, or such other address as either party may specify in writing.  Notices will 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.

15.          GENERAL

15.1          This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of the Country set forth in Schedule 1. Each party irrevocably agrees that the courts of the location set forth in Schedule 1 shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

15.2          This Agreement constitutes the entire agreement between the parties, and shall supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.

15.3          If any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement which shall remain in full force and effect.

15.4          A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

15.5          This Agreement does not give rise to any rights under to any third parties to enforce any term of this Agreement.

15.6          This Agreement 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 (other than the New York General Obligations Law §5-1401). 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.

15.7        This Agreement may be executed in two or more counterparts, each of which when executed shall constitute a duplicate original, and all of which together shall constitute the one Agreement.

Schedule 1

This Schedule 1 sets forth the various restrictions and guidelines based on the countries and/or country as specified in the IO where Fluent may direct its services for and on behalf of Advertiser.