CONSENTED USER PURCHASE AGREEMENT
Last Updated: July 31, 2023
This CONSENTED USER PURCHASE AGREEMENT (“Agreement”) is made by and between Fluent, LLC, a Delaware limited liability company with its principal office located at 300 Vesey Street, 9th Floor, New York, NY 10282 (“Fluent”) and Provider whose name appears on the IO (“Provider”) executed by Fluent and Provider and are effective as of the date set forth in one or more Insertion Orders (each an “IO”). Fluent reserves the right to modify this Agreement at any time by posting the revised Agreement to our website. Provider’s continued services after any such modification will constitute Provider’s acceptance of such modification. If a Provider does not wish to accept any such modification to the Agreement, Provider must stop providing services. Fluent and Provider may be referred to individually as a “Party”, or collectively as the “Parties”.
As provided for in one or more IOs, Fluent wishes to purchase from Provider: (i) data records of users who have, among other things, provided their “prior express written consent,” as that term is defined in the Telephone Consumer Protection Act (“TCPA”), to be contacted by telemarketing and/or text message by Fluent or the applicable Named Advertiser, as defined below, (ii) call transfers to a Fluent designated number from user-initiated inbound calls, (iii) call transfers to a Fluent designated number from Provider-initiated outbound telemarketing calls where the user has consented to the transfer, on the terms and conditions provided for herein, and (iv) Aged Leads (as defined below).
1. Definitions. In addition to terms defined elsewhere in these Terms, the following terms will have the meanings set forth below:
1.1 “Aged Lead” means a Qualified Lead that was collected more than twenty-one (21) days prior to delivery.
1.2 “Applicable Laws” means all applicable federal, state and local laws, statutes, rules, regulations and policies relating to telemarketing and text messaging, lead generation and advertising including the Federal Trade Commission Act, the TCPA, State “Mini TCPA” laws, Do Not Call Implementation Act, Amended Telemarketing Sales Rule (“TSR”), Federal Trade Commission (“FTC”) rules, regulations and opinions, rules applicable to text messaging including carrier rules and the CTIA Short Code Monitoring Handbook, and applicable privacy and data protection laws including the California Consumer Protection Act of 2018, the California Privacy Rights Act, the Colorado Privacy Act , the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, the Utah Consumer Privacy Act and data privacy laws which take effect after the date hereof (collectively, “Data Privacy Laws”), as such acts, laws, rules, regulations and/or opinions may be amended, modified or supplemented from time to time.
1.3 “Call Transfer” means an Inbound Call Transfer or an Outbound Call Transfer.
1.4 “Confidential Information” means any non-public or proprietary information provided by one Party to the other during the term of this Agreement, including information concerning Fluent sites, the Provider Sites (as defined below), the Provider’s or Fluent’s products and/or services, leads, financial affairs, partnerships, marketing plans or strategies, current or future business opportunities, technology, websites, customer relationships, and contact lists. Confidential Information shall also include any other proprietary business information, which derives actual or potential economic value from not being generally known, which is either clearly identified as confidential or, which under the circumstances surrounding disclosure ought to be treated as confidential, protected information by a reasonable person, including 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.
1.5 “Consenting User” means a consumer who has provided either TCPA Consent or Oral Consent to be transferred to and/or contacted by a Named Advertiser via telemarketing or by text.
1.6 “Creative” means advertisements, webpages, call center scripts and any components or elements thereof created by Provider including webpages, banner ads, emails, ad copy, direct mail, call center scripts, contextual ads and/or other content that comprises the Creative.
1.7 “Inbound Call Transfer ” means the transfer of a user-initiated call generated by Provider where the user has provided Oral Consent to the transfer to Fluent or its designee.
1.8 “Named Advertiser” means a person whose name or registered DBA has been included within the consent language of the solicitation for TCPA Consent or included on the page with the TCPA Consent in a hyperlinked list of marketing partners to such consent solicitation or included within the script of a solicitation for Oral Consent.
1.9 “Oral Consent” means express oral consent obtained on a live recorded telephone call, as provided by a user on an Inbound or an Outbound Call who, after listening to a scripted solicitation to be transferred, provides their verifiable consent to be transferred or who, after listening to a scripted solicitation to be contacted by a Named Advertiser via an outbound telemarketing call or text, provides their verifiable oral consent to be contacted by the Named Advertiser.
1.10 “Outbound Call Transfer means the transfer of an outbound dialed call made in compliance with the TCPA and TSR by Provider where the user has provided Oral Consent to the transfer to Fluent or its designee.
1.11 “Qualified Lead” means: (a) a Consenting User who has provided TCPA Consent, the consumer’s name, telephone number, zip code and Jornaya LeadID/Active Prospect TrustedForm; and/or (b) for a Call Transfer, where Oral Consent was obtained, the name, telephone number and zip code of the Consenting User and such other information as may be specified in an IO.
1.12 “TCPA Consent” means the affirmative “prior express written consent” within the meaning of 47 CFR §1200(f)(9), from a user: (a) providing their electronic written signature (within the meaning of the e-Sign Act), to be contacted by outbound telemarketing or text message by a Named Advertiser; or (b) who has provided Oral Consent to be contacted by telemarketing or text message (including autodialed calls, pre-recorded calls and/or artificial voice calls) by a Named Advertiser.
2. Campaign Terms. Each IO shall specify the campaign/advertising vertical, acceptable method(s) of generating Consenting Users (e.g., Qualified Lead, Inbound Call Transfer, Outbound Call Transfer, Aged Lead, or such other specified method; each a “Deliverable”), the name of the Named Advertiser to be included in the TCPA Consent language, the price per Deliverable and payment terms, daily/monthly caps, campaign duration, targeting criteria, exclusivity and any other terms and conditions at variance with this Agreement. If there is any inconsistency between this Agreement and an IO, the terms in the IO shall prevail.
3. Provider Obligations.
3.1Qualified Leads. If Provider is providing Qualified Leads, Provider shall source Qualified Leads solely from its owned and operated websites (“Provider Sites”), which must be approved in advance by Fluent; brokered leads or leads sourced from third-party sites are not allowed without Fluent’s prior written approval. Provider shall not, in any case, source Qualified Leads from Provider Sites or leads from brokers or any other third party that are not approved in advance by Fluent. Provider shall be responsible for the acts or omissions of approved third-party sources of Qualified Leads. The Provider Sites and the means of soliciting TCPA Consent must comply with Applicable Laws. Provider shall use forms that solicit TCPA Consent with Fluent or its designee included as a Named Advertiser in the body of the consent language or in a hyperlinked list of Marketing Partners that complies with the TCPA and/or use survey questions that solicit TCPA Consent that comply with the TCPA and where applicable, Centers for Medicare & Medicaid Services (“CMS”) rules (“CMS Rules”), to identify users who have expressed interest in talking with a call center representative in a vertical as specified in one or more IOs; sample forms of TCPA Consent solicitation which names Fluent in the body of the TCPA Consent language or in the Marketing Partners list (of twenty (20) or less) and a survey question that solicits TCPA Consent are attached as Exhibits 1 and 2.
3.1.1 Provider shall collect evidence of TCPA Consent for each Qualified Lead by using Jornaya’s LeadID and/or Active Prospect’s TrustedForm for each Consenting User. Where Provider uses Jornaya, Provider shall maintain the Lead ID for each TCPA Consent obtained (“Jornaya Consent Records”). Where Provider uses TrustedForm, Provider shall maintain the Certificate ID and Certificate of Authenticity for each TCPA Consent obtained (“TrustedForm Consent Records”). Provider shall retain the Jornaya Consent Records and TrustedForm Consent Records, as well as any other records showing prior express written consent, as applicable (collectively, the “Prior Express Written Consent Records”), for a minimum of six (6) years following collection of same. Provider must, within two (2) business days of receipt of Fluent’s request, provide the: (i) Prior Express Written Consent Records to Fluent; and (ii) name, date, time, IP address and referral URL where the applicable individual(s) provided TCPA Consent.
3.1.3 Provider shall transmit Qualified Leads securely via end-to-end encryption and with such information and in such format as may be specified in an IO or as otherwise designated by Fluent from time to time.
3.1.4 Provider shall transmit Aged Leads securely via end-to-end encryption and in the quantity and meeting the parameters set forth in an IO or as otherwise designated by Fluent from time to time.
3.2. Call Transfers. For all Call Transfers, Provider shall maintain recordings of all calls, obtained prior to transfer to Fluent or its Named Advertiser, in a searchable database and shall provide digital recordings of same within five (5) business days of Fluent’s written request.
3.2.1 Outbound Calls. Provider shall only contact Provider-supplied Consenting Users from call center(s) owned and/or under Provider’s management and control and approved by Fluent as provided for in Section 3.5.
3.2.2 Inbound Calls. Provider shall generate the Inbound Calls by posting dedicated call-in numbers on Provider Sites, sending direct mail Creative, email, radio or TV ads, SMS messages with click-to-call numbers or other marketing channels. For Inbound Calls, Provider shall provide the means by which the Inbound Call was generated and an exemplar of the Creative that generated the Inbound Call. For Inbound Calls sourced from SMS messages, such SMS messages shall be sent in compliance with all Applicable Laws, including the TCPA, and Provider shall provide, upon request, proof of TCPA Consent and Recordation Prior Consent as provided for in Section 3.1.
3.3 No Pre-Recorded Messages. Provider will provide Outbound Call Transfers and Qualified Leads of Consenting Users contacted using live call center agents and does not currently use and agrees not to sell Outbound Call Transfers and Qualified Leads of Consented Users who have been contacted using automated voice technology, such as pre-recorded messages, soundboard technology, AI-assisted voice technology, ringless voicemail or other automated voice methods.
3.4 DNCs; Opt-Outs/Revocations. Provider shall scrub all Qualified Leads and Call Transfers against its internal Do Not Call (“DNC”) list, as well as lists provided by third-party service providers, including the BlackListAlliance.com and DNC.com Litigator Scrub. Provider shall maintain an opt-out system that records TCPA Consent revocations received from Consenting Users. Provider will notify Fluent of Consenting Users that revoke TCPA Consent within ten (10) days after transferring a Qualified Lead to Fluent. Further, Provider understands that Fluent also maintains its own DNC list and agrees that Fluent shall have the right to block any Call Transfers at its discretion.
3.5 CMS Compliance. If an IO specifies that Provider is supplying Leads or Call Transfers for CMS campaigns, Provider shall use commercially reasonable efforts to comply with applicable CMS Rules including (i) submitting Creatives directly, or through third-party clients, to CMS via the Health Plan Management System (“HPMS”) and obtaining the corresponding Standardized material identifications (“SMIDs”), (ii) obtaining carrier opt-in for the use of the Creatives, and (iii) coordinating with Fluent with regard to the foregoing.
3.6 Audit. Provider must successfully complete an initial telemarketing audit before it can submit Qualified Leads, Inbound Call Transfers, Outbound Call Transfers and/or Aged Leads. Fluent will only approve those Provider Sites and call centers that it believes, in its reasonable judgement, comply with Applicable Laws and meet applicable legal, regulatory, compliance and proof standards.
3.6.1 Fluent shall review, at a minimum, Provider Sites to evaluate (i) how they obtain TCPA Consent and Recordation Prior Consent, (ii) the Creative used and the applicable methods for ascertaining whether a user has expressed interest in a particular advertising vertical and, where required, in compliance with applicable CMS Rules and other vertical specific rules or standards, and (iii) the Provider Sites’ implementation of Jornaya and Trusted Form for verifying that they obtained TCPA Consent. Once approved, Provider agrees that it will not materially modify its practices and procedures for soliciting TCPA Consent, providing proof of TCPA Consent, its Creative or its compliance with other Applicable Laws, including CMS Rules as disclosed in the audit unless it has secured Fluent’s prior written approval for such modifications, which approval may be withheld in Fluent’s sole discretion. Fluent reserves the right to perform subsequent audits during the term of the Agreement if it believes, in its reasonable judgement, that any of Provider’s telemarketing practices and procedures or its compliance with Applicable Laws may have changed.
3.6.2 If Provider uses a third-party call center, Provider shall be solely responsible for the acts and omission of such third-party call center, its agents and employees.
3.6.3 Fluent will evaluate the opt-out practices and procedures of third party call centers to ensure that they meet the requirements set forth in Section 3.4
3.7 Provider may use a third party call center to generate Oral TCPA Consents, subject to Fluent’s approval rights, where Provider (i) believes, in its reasonable commercial judgment, such call center has the technical capabilities and appropriate training and management to operate a call center and obtain Oral TCPA Consent in compliance with Applicable Laws, and (ii) has the contractual right to manage, train and monitor the call center reps. Provider shall be solely responsible for the acts and omission of its approved third party call center providers, and their respective agents and employees.
3.8 Without limiting any of the marketing restrictions contained herein, unless expressly authorized in the applicable IO(s) or unless Provider obtains Fluent’s prior written approval in each instance, Provider may not: (i) include or promote any Creative by or through any blogs, news articles, third party newsgroups, message boards or other social media outlets; or (ii) use any endorsements or testimonials in connection with marketing the Creative. Where Provider receives Fluent’s prior written consent to engage in the marketing activities described in Section 3.8(i) and (ii) above, Provider shall fully comply with the Federal Trade Commission Guidelines Concerning the Use of Endorsements and Testimonials (“FTC Guidelines”).
3.9 Provider shall not directly incentivize users to provide TCPA Consent.
3.10 Provider may not, nor knowingly permit any person to, inflate the amount of leads through any deceptive or misleading practice or method including the use of any spyware, adware, device, program, robot, iFrames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person completing a lead registration form.
4. Complaints and Claims.
4.1 If Fluent receives a third-party claim that a consumer was contacted in violation of the TCPA, Fluent shall promptly provide Provider with a copy of the claim and the Parties shall develop a mutually agreeable plan to respond. Provider shall promptly provide Fluent with proof of TCPA Consent in compliance with Section 3.1. and shall, unless Fluent agrees to the contrary, interface with the claimant in an effort to expeditiously resolve the claim.
4.2 Provider shall use commercially reasonable efforts to resolve claims from claimants who claim to have been contacted without providing TCPA Consent by providing such claimants with proof that TCPA Consent was in fact obtained.
4.3 Except as they relate to claims arising from violations by Fluent, any settlements with a claimant (including any legal fees or costs in connection therewith) must be funded exclusively by Provider, must include a full release of Fluent and its principals and employees, and shall be subject to Fluent’s prior written approval.
5. Fees; Reporting; Audit Rights.
5.1 Fluent shall pay Provider fees (the “Fees”) in an amount equal to, on the basis of and pursuant to the payment terms specified in the IO. Unless otherwise provided for in an IO, provided that Fluent provides Provider real-time reporting, the number of Qualified Leads shall be determined by Fluent, subject to the adjustments provided for in Section 5.2. Fluent shall send monthly reports to Provider that set forth the number of Qualified Leads, Inbound Call Transfers, Outbound Call Transfers, Aged Leads 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 (“Service Month”). The Parties will use commercially reasonable efforts to finalize the number of actions, revenue, and Fees owed as promptly as possible. Fluent shall pay Provider thirty (30) days after either the conclusion of the Service Month or the date the invoice is delivered, if later, or pursuant the terms specified in the IO. If Provider does not render an invoice within six (6) months after the conclusion of a given Service Month, Fluent shall have no liability to pay for the Qualified Leads, Inbound Call Transfers, Outbound Call Transfers or Aged Leads covered by such invoice.
5.2 Fluent will scrub all Qualified Leads against its internal DNC list and remove any matches generated in connection with that process. Fluent will also remove Duplicate Leads, Invalid Leads and Fraudulent Leads. For purposes of this Agreement, a “Duplicate Lead” is a Consented User that had been added to Fluent’s database of users within thirty (30) days of Provider’s transfer of the subject Consented User to Fluent. For purposes of the Agreement, an “Invalid Lead” means a lead that is generated in connection with a violation of any of the terms or conditions of this Agreement or any IO including, as determined by Fluent in its reasonable discretion, including any lead with TCPA Consent that is not fully documented as required hereunder using either Jornaya’s LeadID or Active Prospect’s TrustedForm. For purposes of the Agreement, a “Fraudulent Lead” means a lead that is the product of directly incentivizing a user to provide TCPA Consent, fraud or manipulation of information on the part of Provider. Any Qualified Leads not scrubbed/removed within ten (10) days following the last day of the calendar month in which applicable actions occur shall be deemed billable for the applicable billing month. Except as where any billable actions are found to violate Provider’s obligations hereunder, no chargebacks or other credits shall be accepted by Provider.
5.3 Each Party shall maintain accurate books and records regarding the determination of the payments due hereunder.
5.4 Provider agrees to hold Fluent liable for payments solely to the extent proceeds have cleared from the Named Advertiser to Fluent for Qualified Leads delivered in accordance with the IO. For sums not cleared to Fluent, Provider agrees to hold the Named Advertiser solely liable. Provider understands that the Named Advertiser is Fluent’s disclosed principal and Fluent, as agent, has no obligations relating to such payments.
5.5 If Provider materially varies from its method of securing Written or Oral TCPA Consent that was approved by Fluent following an audit, such as buying contact data from third parties or failing to obtain valid proof of TCPA Consent, Fluent may refuse to pay for and/or chargeback any amounts paid to Provider attributable to leads generated in connection with such unapproved practices.
6. Term and Termination.
6.1 The term of this Agreement will commence when the first IO between the Parties takes effect, and will continue, unless earlier terminated, until the expiration of the last to expire IO between the Parties (“Term”). Either Party may terminate this Agreement, upon two (2) business days’ prior written notice to the other Party (with email sufficing). Any proper termination of this Agreement shall not relieve Fluent of any remaining payment obligations due to Provider not otherwise subject to a good faith dispute.
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 resolved to its reasonable satisfaction.
6.3 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.
7.1 The terms of this Agreement and any information (written, verbal or otherwise) provided by the Parties hereunder or in connection herewith shall be deemed to be confidential. Without limiting the generality of the foregoing, confidential information shall include this Agreement’s terms, information relating to the Consenting Users, and other information disclosed by one Party to the other. Neither Party shall at any time disclose any of the terms of this Agreement, nor any information shared pursuant hereto, to any third party except to professional advisors of either Party or as otherwise authorized under this Agreement or as may be required by applicable law or to enforce this Agreement.
7.2 The foregoing confidentiality provisions shall not apply where the receiving Party can demonstrate that the information: (i) was previously known to the receiving Party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the receiving Party; (iii) was rightfully received from a third party who was not bound under any confidentiality provisions; (iv) was disclosed pursuant to judicial order, requirement or request of a governmental agency or by operation of law; or (v) was disclosed to a third party as expressly authorized by this Agreement. The Parties hereby acknowledge that either Party may disclose this Agreement to the extent necessary to comply with filing requirements, if any, of the Securities and Exchange Commission.
7.3 The Parties agree that monetary damages for breach of this Section 7 may not be adequate and that the non-breaching Party shall be further entitled to injunctive relief, including specific performance, without the requirement to post a bond or other form of security.
8. Representations, Warranties and Covenants.
8.1 By Both Parties. Each Party represents and warrants to the other that:
8.1.1 it has full power and authority to enter into this Agreement; and
8.1.2 the execution, delivery and performance by such Party of this Agreement will not materially breach any agreement by which such Party is bound, or violate Applicable Laws, or violate the intellectual property rights of any third party.
8.2 Provider Representations and Warranties. Provider represents, warrants and covenants to Fluent that:
8.2.1 the Services, Provider Sites, Provider call centers and the operations thereof, as well as the Creative and means used to acquire TCPA Consent or Oral Consent, comply with Applicable Laws and do not use deceptive or illegal acts or practices or infringe upon the third party intellectual property rights of any third party;
8.2.2 the Consenting Users have provided valid TCPA Consent to receive text messages and/or telemarketing calls (including autodialed calls, pre-recorded calls and/or artificial voice calls) from the Named Advertisers as contemplated by this Agreement; and
8.2.3 the Consenting Users were acquired in compliance with Applicable Laws and none of the Consenting Users were obtained from third parties or through harvesting and/or any other deceptive or illegal acts or practices.
8.3 Fluent’s Representations, Warranties and Covenants. Fluent represents, warrants and covenants to Provider that:
8.3.1 Fluent will use the Qualified Leads and Aged Leads and process Call Transfers in compliance with Applicable Laws; and
8.3.2 Fluent shall not use, share, or disclose any Qualified Leads, nor the associated data that are scrubbed or otherwise rejected.
8.4 NO OTHER REPRESENTATIONS AND WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY WHATSOEVER, EITHER EXPRESS OR IMPLIED. ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BOTH PARTIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES WHICH COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY WARRANTY REGARDING CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY OR PERFORMANCE.
9.1 Each Party (“Indemnifying Party”) hereby agrees to indemnify, defend and hold harmless the other Party, its parent and subsidiary companies, and their respective officers, agents, directors, employees, contractors, and authorized representatives (collectively, “Indemnified Party”) from and against any claims, costs, losses, liabilities and expenses, including court costs, reasonable expenses, and reasonable attorneys’ fees (“Losses”) incurred by reason of any third party claim arising out of, as a result of, or in connection with the Indemnifying Party’s breach of any duty, representation, warranty or covenant hereunder.
9.2 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 or does not include a full release of the Indemnified Party without their express written consent. The Indemnified Party may engage counsel of its own choosing and at its expense to monitor and assist in the defense of any claim. 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.
9.3 Without limiting the foregoing, Provider agrees to indemnify, defend and hold harmless Fluent, its subsidiaries, Advertisers, shareholders, agents, contractors, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any: (i) claim related to the Services, generation of leads and/or Provider’s marketing practices associated therewith; (ii) claim associated with the Provider’s Creative, Provider Sites and/or call centers; and/or (iii) act or omission of any of its third party service providers and affiliates.
10. Limitation of Liability. EXCLUDING THE PARTIES’ OBLIGATIONS UNDER SECTION 9 HEREUNDER WHICH RESULT IN ACTUAL, OUT-OF-POCKET EXPENSES AND/OR COSTS TO THE INDEMNIFIED PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE, INCURRED BY THE OTHER PARTY ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, OTHER THAN FOR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT, FLUENT’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE FEES PAID TO PROVIDER BY FLUENT PURSUANT TO THIS AGREEMENT DURING THE PRIOR TWELVE (12) MONTH PERIOD. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL FLUENT BE RESPONSIBLE OR LIABLE FOR THE ACTS AND/OR OMISSIONS OF ANY NAMED ADVERTISER(S) UNDER ANY CIRCUMSTANCES. ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE ASSERTED WITHIN ONE (1) YEAR OF THE DATE UPON WHICH SUCH CAUSE OF ACTION ACCRUED, OR THE DATE UPON WHICH THE COMPLAINING PARTY SHOULD HAVE REASONABLY DISCOVERED THE EXISTENCE OF SUCH CAUSE OF ACTION, WHICHEVER IS LATER.
11. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed received: (a) if given by facsimile transmission, when transmitted to the facsimile number specified herein and machine generated confirmation of receipt is received; (b) if by email, when transmitted to the email address specified herein and machine generated confirmation of delivery or receipt is received; or (c) if by overnight courier service or registered or certified mail or personal delivery, when received; provided that if the date of receipt hereunder is not a business day in the place of receipt, the notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt to the following addresses, emails and/or facsimile numbers (or at such other addresses, emails and/or facsimile numbers for a Party as shall be specified by like notice):
If to Fluent:
300 Vesey Street, 9th Floor
New York, NY 10282
Attention: Daniel J Barsky, General Counsel
Email: LEGALNOITICES email@example.com
If to Provider, at the name, address and contact information specified in the IO.
12.1 Waiver. The failure of either Party to insist upon or enforce performance by the other Party shall not constitute waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and shall remain in full force and effect.
12.2 Relationship of the Parties. The Parties to the Agreement are independent contractors. Neither Party is or shall be deemed an agent, representative, partner or employee of the other Party. Neither Party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party in any manner whatsoever. The Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
12.3 Survival. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
12.4 Construction; Severability. Each Party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Further, all provisions are inserted conditionally on their being valid in law. If any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement: (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
12.5 Remedies. Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
12.6 Entire Agreement. This Agreement (including the IOs) constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the transactions set forth herein.
12.7 Amendment. Fluent may modify this Agreement by posting a new version online. If a Provider does not agree to such changes, Provider may cease providing Services to Fluent. Provider may request that this Agreement as applied to Provider be modified; provided, however, that any amendment will be effective only pursuant to written amendment executed by both Parties.
12.8 Assignment. Neither Party to the Agreement shall sell, transfer, or assign the Agreement or the rights or obligations hereunder, other than to a parent or wholly-owned subsidiary, without the prior written consent of the other Party. Notwithstanding the foregoing, without securing such prior consent, either Party shall have the right to assign or transfer the Agreement and its obligations hereunder to any successor-in-interest of such Party by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of substantially all of the business and assets of the assigning Party of more than seventy-five percent (75%) of the outstanding stock of the assigning Party. Subject to the foregoing, the Agreement will be fully binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns.
12.9 Headings. The captions and headings used in the Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement.
12.10 Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. Each Party agrees that this Agreement, the IO(s) and any other documents to be delivered in connection herewith may be executed on facsimile copies in PDF format which shall be deemed to be, and utilized in all respects as, an original, wet-inked manually executed document and shall be deemed to be original signatures when transmitted to the other Party electronically.
12.11 Jurisdiction and Venue. Except to the extent necessary to confer jurisdiction upon a court to award injunctive relief reasonably requested by one of the Parties, in the event of any legal action between the Parties relating to this Agreement, the Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in New York County, New York.
12.12 Contract Interpretation. For purposes of contract interpretation, including resolution of any ambiguity, the Parties acknowledge that this Agreement was prepared jointly by their respective attorneys and therefore the terms of the Agreement should not be strictly construed against either Party.