General Publisher Terms and Conditions

Last updated: 8/23/2023

These terms and conditions (“Terms”) govern the relationship between Fluent, Inc. (“Fluent”) and the Publisher (as defined herein) or Publisher Network (as defined herein) identified in the corresponding insertion order (“IO”). These Terms set forth the respective rights and obligations of Fluent and the Publisher or Publisher Network, as applicable (each, a “Party,” or together, the “Parties”) and shall be deemed incorporated by reference into any IO entered into between Fluent and Publisher or Publisher Network. Together with an executed IO, the Terms constitute a legally binding agreement (“Agreement”) between the Parties. To the extent there are multiple IOs with a single Publisher or Publisher Network, these Terms shall apply to each IO and each one shall constitute a separate Agreement. In the event of any conflict between the Terms and a corresponding IO, provided that the IO terms are compliant with Applicable Laws and Requirements, the IO shall govern.

1. Relationship Among Fluent, Publisher, Publisher Network, and Publisher Source

1.1. Publisher – “Publisher” means any Person (as defined herein) who Fluent pays, offers to pay, or provides or offers to provide any form of consideration for the work specified in the corresponding IO, which may include: (i) the provision or referral of potential or actual consumers to Fluent and/or (ii) the advertising, marketing, promotion, or offering for sale any of Fluent’s goods or services (collectively referred to herein as “Services”).

1.2. Publisher Network – If a Publisher pays, offers to pay, or provides or offers to provide any form of consideration to any other Person for Services, such Publisher shall be referred to herein as “Publisher Network.”

1.3. Publisher Source – “Publisher Source” (collectively, “Publisher Sources”) means any Person who Publisher Network pays, offers to pay, or provides or offers to provide any form of consideration for Services (sometimes referred to elsewhere as sub-publishers or affiliates).

1.4. Fluent is not and shall not be deemed a party to any agreement or arrangement between a Publisher Network and a Publisher Source. As set out herein, Publisher Network bears full responsibility to comply with the Agreement and is responsible for any and all actions or inactions of any of its Publisher Sources (as applicable). Publisher Network is obligated to ensure that any such Publisher Source complies with all Applicable Laws and Requirements to which Publisher Network itself is subject to under the Agreement, including by ensuring that the Publisher Network has vetted each Publisher Source as set out below and entered into an agreement with each Publisher Source which obligates the Publisher Source to comply with all Applicable Laws and Requirements.

2. Definitions

“Applicable Laws” means all applicable laws, rules, regulations, ordinances, judgments, decrees, orders, guidance, or other governmental mandatory requirements, including all laws relating to consumer protection, data protection, lead generation, marketing, and privacy, such as the Federal Trade Commission Act (“FTCA”), the CAN-SPAM Act (“CAN-SPAM”), the Restore Online Shoppers’ Confidence Act (“ROSCA”), Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”), the Fair Credit Reporting Act (“FCRA”), the Federal Trade Commission’s Guides Concerning Use of Endorsements and Testimonials in Advertising (“Endorsement Guides”), the California Consumer Privacy Act of (“CCPA”), the Colorado Privacy Act (“CPA”), the Connecticut Data Privacy Act (“CTDPA”), the Virginia Consumer Data Protection Act (“VCDPA”), and the Utah Consumer Privacy Act (“UCPA”). If any Applicable Laws are enacted or amended after the Effective Date of the Agreement setting forth standards more restrictive or materially different than those set forth herein, the more restrictive or materially different standards contained in such subsequently enacted Applicable Laws shall apply.

“Applicable Laws and Requirements” means Applicable Laws, the FTC Consent Order, the Publisher Marketing Requirements, and these Terms.

“Campaign” (collectively, “Campaigns”) means a promotional program or advertising campaign as specified in a corresponding IO.

“Clear(ly) and Conspicuous(ly)” means easily noticeable and easily understandable by consumers as fully set out in the FTC Consent Order.

“Commercial Email Message” (collectively, “Commercial Email Messages”) 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.

“Confidential Information” means information (either oral, written, or digital) disclosed by either Party to the other Party, including data, research, product plans, products, services, pricing, customer lists, mailing lists, marketing plans, opportunities, trade secrets, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, and marketing or financial data. 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 these Terms. Confidential Information shall not include any information that: (i) at the time of the disclosure or thereafter is or becomes generally available to the public other than as a result of its disclosure by a Party in violation of the Agreement; (ii) was or becomes available to either Party on a non-confidential basis from a source other than the disclosing Party; (iii) is independently developed by either Party without the use of any Confidential Information; or (iv) was in the possession of a Party prior to being disclosed to by the other Party.

“Creative” means material (including text, graphic, video, audio, and photographs, and any material components or elements thereof, including advertisements and content in Commercial Email Messages) used by Publisher, Publisher Network, or any Publisher Source in connection with Services. “Fluent Creative” means Creative developed by Fluent and provided to Publisher or Publisher Network. “Publisher Creative” means Creative developed by Publisher, Publisher Network, or any Publisher Source. As set out in Section 6, all Publisher Creative developed by a Publisher or Publisher Network must be submitted to Fluent for review and approval prior to public display or dissemination to consumers and all Publisher Creative developed by a Publisher Source must be submitted to the applicable Publisher Network for review and approval prior to public display or dissemination to consumers. “Approved Publisher Creative” means Publisher Creative that has been reviewed and approved (prior to public display or dissemination) for use as required herein.

“Fluent Site” (collectively, “Fluent Sites”) means a consumer-facing website or other media property owned and operated by Fluent.

“FTC Consent Order” means the Stipulated Order for Permanent Injunction, Monetary Judgment, Civil Penalty Judgment, and Other Relief dated July 17, 2023, and entered into by Fluent and the Federal Trade Commission (which is Exhibit 1 to these Terms, a copy of which can be found at: FTC Consent Order), as well as any and all subsequent or related official materials, regulations, laws, judgements, or orders.

“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.

“Lead” means a submission of data by a consumer on a Fluent Site, generated by a Publisher, Publisher Network, or Publisher Source.

“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.

“Personal Information” means individually identifiable information from or about an individual consumer, including: (i) first and last name; (ii) a home or other physical address, including street name, name of city or town, or zip code; (iii) an email address or other online contact information, such as a social media username; (iv) a telephone number, including mobile number; (v) gender; (vi) age or date of birth; (vii) response to any survey or multiple-choice question about circumstances specific to the consumer (e.g., education level, employment status, or household debt); (viii) biometric information; or (ix) any information combined with any of (i) through (viii).

“Publisher Marketing Requirements” means Fluent’s “Advertising and Marketing Requirements for Publishers,” attached hereto as Exhibit 2. Fluent may modify the Publisher Marketing Requirements from time to time in its sole discretion. Fluent will notify Publishers of the modifications and the modified requirements will be posted in CAKE and take effect immediately. If a Publisher, Publisher Network, or a Publisher Source, as the case may be, does not agree to comply with the modified Publisher Marketing Requirements, such Person shall immediately cease providing Services.

“Qualified Lead” (collectively, “Qualified Leads”) means a submission, generated by a Publisher, Publisher Network, or Publisher Source, of complete registration data by a consumer that is a U.S. resident on a Fluent Site, that, in Fluent’s sole discretion, satisfies the criteria specified in the corresponding IO and is generated via means that comply with Applicable Laws and Requirements. Qualified Leads shall not include: (i) any Lead already received by Fluent in the prior thirty business (30) days (singularly, a “Duplicate Lead” and collectively, “Duplicate Leads”); (ii) any Lead that does not contain valid data inputs for all of the required fields (singularly, an “Invalid Lead” and collectively, “Invalid Leads”); or (iii) any Lead that is the product of fraud or manipulation of information, or that is included in a batch of Leads that, in Fluent’s sole discretion, are deemed to have any indicia of being the product of fraud (singularly, a “Fraudulent Lead” and collectively, “Fraudulent Leads”).

“Services” means the work to be performed as specified in a corresponding IO, including, but not limited to, the advertising, marketing, or promotion of Fluent Sites, goods, or services and/or the generation of Leads.

3. Services.

3.1. Publisher shall, and Publisher Network shall (directly and/or through Publisher Source(s)), generate Internet traffic to Fluent Sites and perform Services. Publisher or Publisher Network shall perform all Services in compliance with Applicable Laws and Requirements. Publisher Network shall ensure that all Services performed by any Publisher Source comply with Applicable Laws and Requirements.

4. Rights and Obligations of Fluent.

4.1. Fluent reserves the right, in its sole discretion, to make updates and/or changes (singularly, a “Modification” and, collectively, “Modifications”) to the Terms at any time upon prior notice to Publisher. The latest Terms will be posted on CAKE or in another manner accessible to Publisher or Publisher Network as designated by Fluent from time to time. If Publisher or Publisher Network does not wish to accept a Modification to the Terms, Publisher or Publisher Network must provide notice of termination to Fluent in writing within two (2) business days of such Modification. Publisher or Publisher Network’s continued performance of Services after any such Modification is posted will constitute Publisher or Publisher Network’s acceptance of same.

4.2. Fluent will monitor Publisher or Publisher Network’s activity for compliance with Applicable Laws and Requirements, including as set out in Section 8.

4.3. Fluent may, at any time, request the information and records set out herein from Publisher or Publisher Network. For clarity, Fluent shall use such information for the sole purpose of responding to a request for such information or to enable Fluent to bar the Publisher Network or any applicable Publisher Source from providing lead generation services in the future and will not use it to circumvent Publisher or Publisher Network at any time.

4.4. As set out more fully in Section 9, Fluent shall not be obligated to pay for Leads that, in Fluent’s sole discretion, do not qualify as Qualified Leads. If Fluent reasonably believes that a Publisher or Publisher Network is submitting Fraudulent Leads, Fluent will hold the Publisher or Publisher Network’s payment in ‘Pending Status’ unless and until Publisher or Publisher Network has satisfactorily provided evidence that it is not submitting Fraudulent Leads. Any Lead deemed by Fluent to not be a Qualified Lead or not paid for by Fluent for any reason, shall not be used in any manner whatsoever by Fluent. The Parties agree to work in good faith to resolve any dispute regarding Leads, recognizing that Fluent maintains sole discretion with respect to a determination concerning their status.

4.5. Fluent represents, warrants, and covenants to Publisher or Publisher Network that: (i) Fluent holds the required intellectual property rights and/or licenses necessary to license the Fluent Creative it supplies to Publisher or Publisher Network; and (ii) the Fluent Creative provided to Publisher or Publisher Network (and their posting, display, use, reproduction, distribution, and transmission) do not infringe on any third party’s copyright, patent, trademark, trade secret, or other proprietary rights.

4.6. As set out in Section 10, Fluent may terminate the Agreement at any time, with or without cause, by providing Publisher or Publisher Network, where practicable, with two (2) business days’ written notice of such termination.

5. Rights and Obligations of Publisher or Publisher Network.

5.1. Prior to entering into an IO and/or performing Services, Publisher or Publisher Network shall provide the following identifying information to Fluent:

a. If Publisher or Publisher Network is a business entity: (i) Publisher or Publisher Network’s name; (ii) any and all names under which Publisher or Publisher Network does business; (iii) Publisher or Publisher Network’s state of incorporation; (iv) Publisher or Publisher Network’s registered agent; (v) the first and last name, physical address, country, telephone number, and email address for at least one natural Person who owns, manages, or controls Publisher or Publisher Network; and (vi) the complete bank account information as to where payments are to be made to Publisher or Publisher Network.

b. If Publisher or Publisher Network is a Person: (i) Publisher or Publisher Network’s first and last name; (ii) any and all names under which Publisher or Publisher Network does business; (iii) Publisher or Publisher Network’s physical address and country; (iv) Publisher or Publisher Network’s telephone number; (v) Publisher or Publisher Network’s email address; and (vi) Publisher or Publisher Network’s bank account information (including only the last four (4) digits of bank account number) necessary to identify where payments are to be made to Publisher or Publisher Network.

5.2. Prior to engaging any Publisher Source, Publisher Network shall obtain and retain the following identifying information from such Publisher Source, which shall be provided to Fluent upon request:

a. If Publisher Source is a business entity: (i) Publisher Source’s name; (ii) any and all names under which Publisher Source does business; (iii) Publisher Source’s state of incorporation; (iv) Publisher Source’s registered agent; (v) the first and last name, physical address, country, telephone number, and email address for at least one natural Person who owns, manages, or controls Publisher Source; and (vi) the complete bank account information as to where payments are to be made to Publisher Source.

b. If Publisher Source is a Person: (i) Publisher Source’s first and last name; (ii) any and all names under which Publisher Source does business; (iii) Publisher Source’s physical address and country; (iv) Publisher Source’s telephone number; (v) Publisher Source’s email address; and (vi) Publisher Source’s bank account information (including only the last four (4) digits of bank account number) necessary to identify where payments are to be made to Publisher Source.

If Fluent requests the foregoing information on a Publisher Source, Fluent agrees that it will not use the information for commercial purposes to circumvent Publisher Network.

5.3. By agreeing to these Terms, Publisher affirmatively acknowledges and agrees to:

a. Receipt of the FTC Consent Order and that engaging in acts or practices that do not comply with Laws or the FTC Order may result in immediate termination and forfeiture of all monies owed to Publisher;

b. Provide to each Publisher Source: (i) a copy of the FTC Consent Order; and (ii) a Clear and Conspicuous disclosure in writing that engaging in acts or practices prohibited by the FTC Consent Order will result in disciplinary action, which may include their immediate termination and forfeiture of all monies owed to such Publisher Source; and

c. Obtain and retain proof of same, which shall be provided to Fluent upon request.

5.4. In connection with Services, Publisher or Publisher Network is authorized to market Fluent Sites only as specified in the IO, which may include: (i) via email to consumers in Publisher or Publisher Network’s proprietary database(s) of email addresses (collectively, “Publisher Databases”); (ii) via push notifications to consumers who have opted in to receive push notifications; (iii) via social media; and (iv) via display ads to consumers on websites owned and/or operated by Publisher or Publisher Network (collectively, “Publisher Websites” and together with the Publisher Databases, “Publisher Media”) or third-party websites and social media platforms such as Facebook, Google, Instagram, TikTok, YouTube, and other third-party websites and social media platforms now known or hereafter developed.

5.5. Publisher or Publisher Network may, in its sole discretion, reject, cancel, or remove any Creative at any time for any reason without prior notice to Fluent. Publisher or Publisher Network must notify Fluent following such rejection, cancellation, or removal within one (1) business day.

5.6. As set out in Section 10, Publisher or Publisher Network may terminate the Agreement at any time, with or without cause, by providing Fluent with two (2) business days’ written notice of such termination.

6. Creative – Approval, Review, Changes, and Records.

6.1. Publisher shall solely use, and Publisher Network shall solely use and/or permit any Publisher Source to solely use, Fluent Creative or Approved Publisher Creative. All Creative used must comply with Applicable Laws and Requirements. To the extent that Creative is used by a Publisher Source, Publisher Network shall ensure that all such Creative and the use thereof complies with this provision.

a. If Publisher or Publisher Network wishes to use Fluent Creative, Fluent hereby grants to Publisher or Publisher Network a non-exclusive, royalty-free, worldwide right and license by all means and in any media, whether now known or hereafter discovered, to use, reproduce, distribute, publicly perform, publicly display, and digitally perform Fluent Creative, without material modification, and all its constituent parts, for the duration specified in the corresponding IO. The Parties understand and agree that Fluent is the sole owner of any and all intellectual property rights associated with Fluent Creative.

b. If Publisher or Publisher Network wishes to use Publisher Creative, Publisher or Publisher Network must provide Fluent with a copy of all materially distinct Publisher Creative, for Fluent’s review and approval prior to public display or dissemination to consumers. Once Publisher Creative has been submitted to Fluent for review, Fluent shall evaluate the Publisher Creative to determine whether it complies with Applicable Laws and Requirements. Fluent will inform Publisher or Publisher Network, in writing, as to whether approval to use the Publisher Creative is granted or denied. Publisher or Publisher Network agrees that it will only use Approved Publisher Creative that has been reviewed and approved in writing by Fluent. Publisher Creative shall not infringe or otherwise violate the intellectual property rights of any third party.

c. If any Publisher Source wishes to use Publisher Creative, the applicable Publisher Network shall require such Publisher Source to provide Publisher Network with a copy of all materially distinct Publisher Creative that Publisher Source wishes to use for Publisher Network’s review and approval prior to public display or dissemination to consumers. Once Publisher Creative has been submitted by any Publisher Source to Publisher Network for review, Publisher Network shall evaluate the Publisher Creative to determine whether it complies with Applicable Laws and Requirements. Publisher Network shall inform Publisher Source, in writing, as to whether approval to use the Publisher Creative is granted or denied and shall retain proof of same, which shall be provided to Fluent upon request. Publisher Network shall only permit Publisher Sources to use Approved Publisher Creative that has been reviewed and approved in writing by Publisher Network. Publisher Network shall ensure that Publisher Creative used by any Publisher Source does not infringe or otherwise violate the intellectual property rights of any third party.

6.2. No Publisher or Publisher Network shall, and no Publisher Network shall permit any Publisher Source to, materially edit or otherwise modify Fluent Creative, Approved Publisher Creative, or any component thereof without prior written approval from Fluent on a case-by-case basis. Material modifications to Fluent Creative or Approved Publisher Creative must be submitted for review and approval prior to public display or dissemination to consumers.

6.3. All Creative must include a disclosure statement where it is not reasonably clear that the Creative is a paid advertisement. Publisher or Publisher Network, as applicable, further represents and warrants that the display of such Creative will comply with and contain all disclosures required under Applicable Laws and Requirements.

6.4. Publisher or Publisher Network shall record and maintain the following information in a readily accessible format so that it may be furnished to Fluent upon request within two (2) business days of receipt of any such request: (i) each website or social media location where Creative has appeared that Publisher or Publisher Network and/or any Publisher Source, as applicable, maintains or controls, including any social media account or URL of any website; (ii) each ad platform, such as Google Ads or Meta’s Self-Serve Ads, to which Publisher or Publisher Network and/or any Publisher Source, as applicable, submitted Creative to be served to consumers and the dates corresponding to the time period over which it was served; (iii) the URL for any hyperlinks contained within Creative; and (iv) dates when Creative was publicly displayed or disseminated to any consumer.

7. Performance of Services – Restrictions and Obligations.

7.1. No Publisher or Publisher Network shall engage, and no Publisher Network shall permit any Publisher Source to engage, in any unlawful commercial activities or conduct that violates Applicable Laws and Requirements. Except as otherwise provided for in an IO, this includes conduct that violates the restrictions set out in this Section 7.

7.2 No Publisher or Publisher Network shall display, and no Publisher Network shall permit any Publisher Source to display, Creative before the “Start Date” and after the “End Date” specified in the corresponding IO or as otherwise specified in a written notice from Fluent, or after any cap or volume limitation set forth in the IO has been met.

7.3. No Publisher or Publisher Network shall use, and no Publisher Network shall permit any Publisher Source to use, any “incentivized marketing” tactics or establish, or cause to be established, any promotion that provides any sweepstakes entries, rewards, points, or other compensation to be earned in connection with generating Leads. No Publisher or Publisher Network shall create, and no Publisher Network shall permit any Publisher Source to create, the appearance of incentivized marketing. No Publisher or Publisher Network shall attempt, and no Publisher Network shall permit any Publisher Source to attempt, to induce consumers to provide Lead-related information through use of any other incentives.

7.4. No Publisher or Publisher Network shall engage, and no Publisher Network shall permit any Publisher Source to engage, in any advertising via SMS, Smart Messaging, EMS, MMS or any other type of text messaging service or protocol, facsimile, or telemarketing. If a Publisher, Publisher Network, or any Publisher Source uses SMS or other prohibited methods to perform Services, promote Fluent Sites, or generate Leads, Publisher or Publisher Network, as applicable, shall indemnify Fluent to the fullest extent as provided for in Section 15, including assuming, at its expense, defense of such claims. Any settlement of any such claim shall include a full release of Fluent from any liability in a form reasonably acceptable to Fluent and subject to Fluent’s prior written approval.

7.5. No Publisher or Publisher Network shall use, and no Publisher Network shall permit any Publisher Source to use, any endorsements or testimonials in connection with the performance of Services, unless approved in writing by Fluent. If Publisher, Publisher Network, or any Publisher Source utilizes influencer marketing tactics to perform Services, Publisher or Publisher Network, as applicable, shall ensure that such Services comply with, and cause influencers to comply with, all Applicable Laws and Requirements (including the Endorsement Guides).

7.6. No Publisher or Publisher Network shall, and no Publisher Network shall permit a Publisher Source to, misrepresent or assist others in misrepresenting, expressly or by implication, any fact material to consumers including, the misrepresentations set out in the FTC Consent Order and the Publisher Marketing Requirements.

7.7. Publisher or Publisher Network shall ensure that all ads and/or Creative publicly displayed or disseminated to consumers by Publisher or Publisher Network and/or any Publisher Source, as applicable, Clearly and Conspicuously disclose material elements and information. This includes disclosures required under the FTC Consent Order and the Publisher Marketing Requirements.

7.8. No Publisher or Publisher Network shall use, and no Publisher Network shall permit a Publisher Source to use, invisible methods or auto-spawning browsers to generate Leads that are fraudulent or that are not the affirmative act of the consumer.

7.9. No Publisher or Publisher Network shall engage, and no Publisher Network shall permit a Publisher Source to engage, in spamming, sending any unsolicited mass mailing or instant messaging, or the use of spyware.

7.10. No Publisher or Publisher Network shall violate, and no Publisher Network shall permit any Publisher Source to violate, the terms of service of third-party websites and social media platforms such as Facebook, Google, Instagram, TikTok, YouTube, and other third-party websites and social media platforms now known or hereafter developed.

7.11. No Publisher or Publisher Network shall attempt, and no Publisher Network shall permit any Publisher Source to attempt, to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the tags, source code, links, pixels, modules, or other data provided by or obtained from Fluent that allow Fluent to measure Creative performance and/or assure Publisher Media transparency.

7.12. No Publisher or Publisher Network shall solicit, and no Publisher Network shall permit any Publisher Source to solicit, Personal Information from any consumer under eighteen (18) years of age or from any consumer who is not a U.S. resident. Publisher or Publisher Network shall, and Publisher Network shall require any Publisher Source to, filter out non-U.S. consumers, including consumers who enter a foreign mailing address, have an obvious non-U.S. email address (e.g., X@*.ca), have a known non-U.S. IP address, or access Creative from or are otherwise generated from a non-U.S. Internet service provider.

7.13. No Publisher or Publisher Network shall place, and no Publisher Network shall permit any Publisher Source to place, any Creative or other intellectual property made available to Publisher or Publisher Network in connection with the performance of Services on Publisher Websites or other websites, properties, or platforms that contain, promote, reference, or have links to: (i) web pages with no content; (ii) 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 Fluent to be unsuitable or harmful to Fluent’s reputation; (iii) piracy (of software, videos, audio/music, books, video games, etc.), hacking/cracking/phreaking, content unlockers, emulators/ROMs, or violations of the rights of others, such as intellectual property or privacy rights; (iv) intentionally deceptive acts or practices; (v) personal web pages, non-English language pages, free hosted pages, Publisher Websites, or other websites, properties, or platforms under construction; (vi) charity clicks/donations, paid to surf, Active X downloads, 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.

7.14. No Publisher or Publisher Network shall use, and no Publisher Network shall permit any Publisher Source to use, third-party trademarks or any other term excluded from the applicable “Search Terms for Use” provided in the IO (if provided), in any manner to direct traffic to Publisher Media. This prohibition includes purchasing keywords from search engine service providers (“Paid Search Networks”), or purchasing inclusion in search engine networks (“Paid Inclusion Networks”), where the associated keywords include the trademark, service mark, and/or brand name of any third party, including Fluent, or any derivative or misspelling of any such trademark, service mark, or brand name. Publisher or Publisher Network must provide all text and proposed keywords/phrases that Publisher or Publisher Network and/or any Publisher Source, as applicable, would like to bid on (“Keyword Text”) to Fluent for approval or editing, prior to the submission of same to any Paid Search Network or Paid Inclusion Network. Without limiting the foregoing, no Publisher or Publisher Network shall violate, and no Publisher Network shall permit any Publisher Source to violate, the rules, requirements, and regulations of any Paid Search Network or Paid Inclusion Network. Publisher or Publisher Network shall fully indemnify and hold Fluent harmless from and against any and all liability arising from or in connection with any such violation. Unless otherwise permitted by the IO or by Fluent in writing, in advance, no Publisher or Publisher Network may link directly, and no Publisher Network may permit any Publisher Source to link directly, to a Fluent Site from the sponsored links and/or search results generated in connection with Paid Search Network or Paid Inclusion Network marketing.

7.15. If Publisher or Publisher Network is sourcing Leads from mobile sources, Publisher or Publisher Network shall ensure that Creative displayed on mobile are not disruptive to the consumer experience. Consumers must be able to close out of any Creative served. All Creative displayed on mobile must be formatted in a manner that enables Clear and Conspicuous disclosure of material elements and information.

7.16. Publisher Network shall not engage in, or permit any Publisher Source to engage in, any conduct that Fluent objects to, in writing, at least two (2) business days in advance.

7.17. If Publisher, Publisher Network, or any Publisher Source is utilizing Commercial Email Message on Fluent’s behalf and/or in connection with the performance of Services, all such Commercial Email Messages shall comply with Applicable Laws and Requirements and Clearly and Conspicuously disclose material elements and information as required thereunder, including as set out in the FTC Consent Order and the Publisher Marketing Requirements. Publisher or Publisher Network shall ensure, and Publisher Network shall ensure that any Publisher Source, adheres to the following provisions:

a. All email addresses included in any Publisher Database and/or used by Publisher, Publisher Network, or any Publisher Source to transmit Commercial Email Messages must be associated with U.S. residents who have manifested affirmative consent to receive Commercial Email Messages from Publisher, Publisher Network, or Publisher Source, as applicable.

b. Every Commercial Email Message shall be Clearly and Conspicuously identified as an advertisement and shall include any and all identifiers and disclaimers required under Applicable Laws and Requirements, including those assigned or designated by Fluent to the Commercial Email Message.

c. Every Commercial Email Message must: (i) contain or be accompanied by accurate Header Information, including but not limited to a “from” line (the line identifying or purporting to identify 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 the sender, Fluent, or any other sender on Fluent’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 the sender, Fluent, or any other sender on Fluent’s behalf, and that remains capable of receiving such requests for no less than thirty (30) days after the transmission of the Commercial Email Message; and (vi) a valid physical postal address of the sender.

d. Fluent will make available to Publisher or Publisher Network a regularly updated suppression list containing current unsubscribe requests in conformance with CAN-SPAM through a third-party suppression list management service. Publisher Network shall make such suppression list available to all of its Publisher Sources. Publisher or Publisher Network shall, and Publisher Network shall enable and require any Publisher Source to, update its suppression list at least ten (10) days prior to sending any Commercial Email Messages on Fluent’s behalf and include in such list any unsubscribe requests that it receives for Fluent offers. Publisher or Publisher Network acknowledges that Fluent will monitor whether Publisher or Publisher Network is updating suppression lists on a timely basis. If Publisher or Publisher Network fails to do so, Fluent will immediately suspend, deny payment to, and reject all future consumers referrals from such Publisher or Publisher Network.

e. Publisher or Publisher Network shall, and Publisher Network shall require any Publisher Source to: (i) download and remove the domains located on the Federal Communications Commission’s wireless domain names list (https://www.fcc.gov/consumer-governmental-affairs/about-bureau/consumer-policy-division/can-spam/domain-name-downloads) from any and all current data used in Commercial Email Messages hereunder; (ii) scrub any and all new data acquired, regardless of its source, against such wireless domain names list; and (iii) remove the domain names contained therein before sending any Commercial Email Messages hereunder.

f. No Publisher or Publisher Network shall send, and no Publisher Network shall permit any Publisher Source to send, Commercial Email Messages to any address included in Fluent’s suppression list or the internal suppression list of Publisher Network or any Publisher Source and will not sell, license, or otherwise make the suppression list available, in whole or in part, to any third party or use it for any purpose other than as provided for herein.

g. Publisher or Publisher Network shall honor, and Publisher Network shall ensure that all of its Publisher Sources honor, unsubscribe requests promptly within ten (10) calendar days or less. No Publisher or Publisher Network may, and no Publisher Network may permit any Publisher Source to, 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 Publisher, Publisher Network, Publisher Source, Fluent, or any other sender on Fluent’s behalf.

h. Publisher or Publisher Network shall, and Publisher Network shall require any Publisher Source to: (i) make adequate disclosures to consumers in any Publisher Database regarding its email, privacy, and security policies; and (ii) timely respond to any and all consumer complaints after becoming aware of any such complaint. Publisher or Publisher Network shall provide Fluent with a copy of every complaint related to Fluent, promptly, upon Publisher or Publisher Network’s receipt thereof.

i. Publisher or Publisher Network must collect and maintain, and Publisher Network shall require any Publisher Source to collect and maintain, proof of affirmative consent for twenty-four (24) months from the date of receipt. Upon request, Publisher or Publisher Network shall supply such proof to Fluent, including the name, date, time, and IP address where the consumer signed-up and/or gave affirmative consent to be contacted with Commercial Email Messages.

j. Publisher or Publisher Network shall maintain, and Publisher Network shall maintain for itself and any Publisher Source, at least twelve (12) months after termination of the Agreement, all records evidencing affirmative consent, including: (i) the information set forth in Section 7.17(j); (ii) posted privacy policies of source websites as of the date of receipt of affirmative consent; and (iii) any other information collected at the time of receipt of affirmative consent. Publisher or Publisher Network agrees to produce such records to Fluent within one (1) business day of Fluent’s request therefore.

k. Publisher or Publisher Network is solely responsible for all consumer complaints that it receives in connection with Commercial Email Message conducted by Publisher or Publisher Network and/or any Publisher Source, as applicable, and shall bear any costs and/or fees charged by its Internet service provider related to responding to and/or managing allegations of “spam” or any other unauthorized usage complaints received from consumers, regulatory agencies, or otherwise.

l. Fluent may request Publisher or Publisher Network to investigate any publication or other display of Creative that Fluent reasonably believes may have violated Applicable Laws or Requirements. Publisher or Publisher Network shall promptly commence an investigation of the incident and report the results of the investigation to Fluent and comply with Fluent’s response thereto, which may include identifying the sender of the Commercial Email Message. Fluent will only use such information for the purposes provided for herein.

m. Fluent has the sole discretion to determine if a violation of this Section 7.17 has occurred. Any Lead generated by a Commercial Email Message that is in violation of this Section 7.17 shall not constitute a Qualified Lead and Fluent will not compensate Publisher or Publisher Network in connection with that Lead. Publisher or Publisher Network shall fully defend, indemnify, and hold Fluent harmless against any allegation, claim, action, judgment, loss, damage, or expense (including reasonable attorney fees and costs) arising out of any breach of this Section 7.17.

8. Compliance Monitoring and Consequences of Non-Compliance.

8.1. Fluent actively monitors Publisher and Publisher Network activity for compliance with Applicable Laws and Requirements. Fluent may utilize compliance monitoring tools and methods, including a combination of its own proprietary software and third-party monitoring services, to monitor Publisher and Publisher Network activity, including to detect Duplicate, Fraudulent, and/or Invalid Leads and assess whether a Publisher or Publisher Network is timely updating its suppression list.

8.2. Upon receipt of any complaint or other information alleging or indicating that Publisher, Publisher Network, or any Publisher Source is (i) engaging in acts or practices that do not comply with Applicable Laws and Requirements; (ii) has publicly displayed or disseminated to a consumer any Creative or other material that contains a misrepresentation prohibited by Applicable Laws and Requirements; (iii) has transmitted a Commercial Email Message to any consumer on Fluent’s behalf without downloading, at least ten (10) calendar days prior to sending any such Commercial Email Message, a suppression list maintained by Fluent that contains all requests to unsubscribe from emails advertising, marketing, promoting, or offering for sale any of Fluent’s goods or services; and/or (iv) has engaged in any conduct that is otherwise inappropriate, Fluent will promptly and thoroughly initiate an investigation of the alleged conduct. Upon initiation of any such investigation, Fluent will notify the Publisher, Publisher Network, or Publisher Source (through the respective Publisher Network) that it is under investigation. At the conclusion of any such investigation, Fluent will (x) document the factual findings and conclusions in a written report; and (y) send the written report to the Publisher, Publisher Network, or Publisher Source (through the respective Publisher Network) investigated.

If the investigated Publisher, Publisher Network, or Publisher Source is found to have engaged in acts or practices that do not comply with Applicable Laws and Requirements and/or are otherwise inappropriate, Fluent shall immediately suspend or permanently terminate the Publisher, Publisher Network, or Publisher Source as applicable, including by rejecting all future consumer referrals. Prior to allowing any Publisher, Publisher Network, or Publisher Source that has been suspended to perform Services again, Fluent will require such Publisher, Publisher Network, or Publisher Source to fully comply with Applicable Laws and Requirements.

Fluent shall permanently terminate any Publisher, Publisher Network, or Publisher Source that has been suspended on at least two prior occasions and that subsequently engages in acts or practices prohibited by Applicable Laws and Requirements.

Fluent reserves the right to immediately suspend or permanently terminate a Publisher, Publisher Network, or Publisher Source at any time, including by denying payment to, and/or rejecting all future consumer referrals from, such Publisher, Publisher Network, or Publisher Source.

Fluent shall have the right to hold Publisher or Publisher Network liable for any and all damages and/or claims attributable to conduct by Publisher or Publisher Network and/or any Publisher Source, as applicable, that is in violation of Applicable Laws and Requirements and/or is otherwise inappropriate without regard to any of the damage limitations contained herein.

9. Payment and Payment Terms.

9.1. Fluent shall have no obligation to pay for any Lead that does not fully comply with Applicable Laws and Requirements and/or the parameters set out in the corresponding IO. This includes: (i) Leads generated from Creative that are deemed misleading or deceptive by Fluent; (ii) Leads generated from Creative displayed before the “Start Date” and/or after the “End Date” specified in the corresponding IO absent written approval from Fluent to display such Creative and/or Leads delivered after any cap or volume limitation set forth in the IO has been met; and (iii) Duplicate Leads, Invalid Leads, or Fraudulent Leads as deemed by Fluent in its sole discretion.

9.2. Fluent will pay Publisher or Publisher Network for Qualified Leads on the basis specified in the IO, which may include cost per acquisition, cost per Lead, cost per install, cost per click, etc. Publisher or Publisher Network will invoice Fluent monthly or on such other basis as set forth in the IO at the payout rates reflected in the IO. The invoice will reflect delivery of final Qualified Lead numbers that are based upon numbers reported by Fluent to Publisher or Publisher Network pursuant to the terms of the Agreement. In the case of any dispute between the Parties as to the number of Qualified Leads, Fluent’s numbers shall control. If a Publisher or Publisher Network does not render an invoice within six (6) months after the month in which the Qualified Leads were generated, Fluent shall have no liability to pay for such Qualified Leads.

9.3. Fluent shall make all payments to Publisher or Publisher Network, as applicable, within thirty (30) business days of receipt of an invoice from Publisher or Publisher Network, or on such payment terms specified in the IO. All payments made to Publisher or Publisher Network do not include, and Publisher or Publisher Network shall pay, any sales, use, or similar tax associated with such payment. All past due amounts shall accrue interest at the rate of one percent (1.0%) per month or the maximum rate allowed by law, whichever is lower.

9.4. The Parties shall keep, maintain, and preserve, for the term of the Agreement and for one (1) year thereafter, accurate records relating to amounts due hereunder (“Payment Records”). Each Party shall have the right no more than once per calendar year to audit the Payment Records of the other Party to verify the other Party’s fulfillment of obligations under the Agreement. Such audit will be conducted at a place agreed to by the Parties, during the normal business hours, with at least ten (10) business days’ prior written notice to the Party to be audited. Each Party shall pay its own audit fees and expenses, unless the audit reveals a payment discrepancy of more than ten percent (10%) of the correct amount of payments due in any consecutive six (6) month period, in which case the under- reporting Party shall pay the other Party’s reasonable out-of-pocket audit fees and expenses, and shall immediately pay all amounts found to be due together with interest thereon at the rate specified in Section 9.3.

10. Term and Termination.

10.1. The term of the Agreement shall begin concurrently with the Parties’ execution of the corresponding IO and shall remain in effect until terminated as set forth herein or until expiration of the last IO governed by these Terms, whichever comes first.

10.2. The term for any Campaign will be indicated in the IO. If no term is indicated, the term for a Campaign will continue for one (1) month from the target launch of the initial Campaign as noted in the IO.

10.3. The Agreement, including any outstanding IOs, may be terminated by mutual consent of the Parties at any time. The Agreement may be terminated by either Party, at any time, with or without cause, by giving the other Party two (2) business days’ written notice. The Parties agree that any such notice of termination must be furnished in writing to be effective. For the purposes of this provision, email notice will suffice as written notice. In the event of termination, all non-disputed amounts due to Publisher or Publisher Network will be paid during the next billing cycle. If Publisher or Publisher violates Applicable Laws and Requirements, then Fluent may revoke payment related to any such violation.

11. General Representations and Warranties.

11.1. Fluent and Publisher or Publisher Network, as applicable, each represent and warrant to the other Party that: (i) such Party has the full corporate power and authority to enter into the Agreement, to grant the licenses granted hereunder, and to fulfill and perform the rights and obligations required of it hereunder; and (ii) the Agreement constitutes the legal, valid and binding obligation of such Party, which is enforceable against it in accordance with these Terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar law affecting the enforcement of creditors’ rights generally and or by the federal principles of equity.

12. Confidentiality.

12.1. During the term of the Agreement, the Parties may disclose Confidential Information to one another. Neither Party will use any portion of Confidential Information provided by the other Party for any purpose other than those provided for under the Agreement, provided, however, that the Parties may disclose Confidential Information to the extent requested by a government agency or as required by law, regulation, or court order. Prior to any such disclosure, a Party shall, to the extent that doing so would not prejudice the Party or subject it to a fine or penalty, inform the other Party in writing of such disclosure.

12.2. The Parties agree to use reasonable care to prevent the disclosure of Confidential Information to third parties. A Party in receipt of Confidential Information shall not disclose or release such Confidential Information to anyone except an employee or agent who has a need to know same, and who is bound by confidentiality obligations. Each Party shall ensure that its employees, agents, officers, directors, partners, or representatives are advised of the confidential nature of the Confidential Information and are precluded by contract or other legal obligation from taking any action prohibited under this Section 12.

12.3. A Party shall immediately notify the other Party in writing of all circumstances surrounding any possession, use, or knowledge of Confidential Information by any Person other than those authorized herein. Notwithstanding the foregoing, Fluent shall have the right to disclose the existence of the Agreement and refer to its relationship with Publisher Network for marketing and promotional purposes.

12.4. Upon termination of the Agreement, a Party in receipt of Confidential Information shall, upon the request of the other Party, return or destroy all Confidential Information of the other Party. Notwithstanding the foregoing, a Party may retain one (1) copy of all Confidential Information for legal and compliance purposes provided it maintains such copy in accordance with the Agreement and ceases using such data for business purposes. In the case of destruction, the Party executing such destruction shall certify the same in writing to the other Party within ten (10) days following written request for such certification.

12.5. With the exception of disclosures required under the FTC Consent Order, each Party agrees that, in addition to any other remedies that may be available, a Party disclosing Confidential Information shall be entitled to seek injunctive relief against the threatened breach of the Agreement or the continuation of any such breach by the Party receiving such Confidential Information, without limiting any other rights and remedies to which the Party disclosing Confidential Information may be entitled to at law, in equity, or under the Agreement.

13. DISCLAIMER OF WARRANTIES: EXCEPT AS OTHERWISE PROVIDED HEREIN, EACH OF THE PARTIES PROVIDES THE CREATIVE, SITES, AND SERVICES, AS PERFORMED HEREUNDER, ON AN “AS IS,” “WHERE IS,” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE PROVIDED HEREIN, EACH OF THE PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

14. LIMITATIONS 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 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 THE AGREEMENT AND (II) FLUENT SHALL NOT BE LIABLE TO THE OTHER PARTY FOR AN AMOUNT GREATER THAN THE AMOUNTS PAID BY FLUENT TO PUBLISHER DURING THE SIX MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM.

15. Indemnification.

15.1. Each Party agrees to indemnify, defend, and hold the other Party and its officers, directors, employees, representatives, agents, subsidiaries, and affiliates harmless from and against any and all third-party claims, actions, liabilities (including all reasonable costs, expenses, and attorneys’ fees) arising from or relating to any breach of any of its obligations, representations, or warranties under the Agreement.

15.2. 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 without their express written consent. Once the Indemnifying Party tenders defense, the Indemnified Party shall have the right to participate in the defense and/or retain separate counsel at its own expense. 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.

16. Dispute Resolution.

16.1. If any dispute arises under the Agreement, if applicable, the Parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the following location: State of New York, New York County. Any costs and fees other than attorneys’ fees associated with the mediation shall be shared equally by the Parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties agree to submit the dispute to binding arbitration in the following location: State of New York, New York County. The Parties agree that the binding arbitration will be conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. If any litigation or arbitration is absolutely necessary to enforce the Agreement or the terms thereof, the prevailing Party shall be entitled to reimbursement by the other Party for reasonable attorneys’ fees, costs, and expenses. The Agreement will be governed by the laws of the State of New York.

17. General Provisions.

17.1. Neither Party shall have the right to assign or otherwise transfer its rights nor obligations under the Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, purchase, or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.

17.2. Each Party is an independent contractor. Except as set forth in the 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.

17.3. If any term, provision, covenant, or condition of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.

17.4. These Terms are deemed incorporated into the IO and will be effective when the IO is signed by Fluent and Publisher or Publisher Network, as applicable. The IO may be signed in counterparts, and facsimile signatures shall have the same force and effect as an original signature.

17.5. Notices. Any notice, approval, or consent required or permitted hereunder shall be in writing and sent to the addresses set forth on the corresponding IO and will be deemed to have been duly given: (i) upon delivery, if delivered personally; (ii) if mailed by first-class, registered, or certified U.S. mail, postage prepaid, return receipt requested, within three (3) days of mailing; (iii) if sent via overnight delivery service, on the date of delivery; or (iv) if sent via email, upon receipt by the sender of electronically generated confirmation of delivery and opening by the recipient.

Exhibit 1

FTC Consent Order

Exhibit 2

Advertising and Marketing Requirements for Publishers

Version 4.0
July 17, 2023

Fluent strives for a positive and informed experience each time a consumer interacts with its websites and products. That consumer experience starts with Publisher advertisements.

To ensure a quality experience, all Publishers and Publisher Networks (as defined in Fluent’s Terms and Conditions) must abide by the requirements set out herein. To the extent that a Publisher Network utilizes sub-publishers or affiliates (referred to as “Publisher Sources” in Fluent’s Terms and Conditions), the Publisher Network must ensure that all of its Publisher Sources comply with these requirements.

This document is intended to set out basic advertising principles and prohibited conduct. To the extent that you have any questions regarding the requirements set forth in this document or certain conduct, please contact your Fluent account manager or Fluent’s Compliance Dept at complianceteam@fluentco.com.

I. Permissible Advertising Materials

As a general rule, all Publishers are solely permitted to use advertising materials (including text, graphic, video, audio, and photographs) provided by Fluent (“Fluent Creative”). If a Publisher wishes to develop and use its own advertising materials (“Publisher Creative”), it must submit the materials to Fluent for review and approval prior to use. Fluent will inform Publisher in writing as to whether approval to use Publisher Creative is granted or denied. Publisher Creative may only be used with prior written approval from Fluent.

If a Publisher Network utilizes Publisher Sources that wish to develop and use their own Publisher Creative, Publisher Network must require all Publisher Sources to submit Publisher Creative to the Publisher Network for review and approval prior to public display or dissemination to consumers. Publisher Network shall evaluate submitted Publisher Creative based on the requirements outlined in this Advertising and Marketing Requirements for Publishers document and inform Publisher Sources in writing as to whether approval to use Publisher Creative is granted or denied. Publisher Networks shall only permit Publisher Sources to use Publisher Creative with prior written approval from Publisher Network.

Creative may not use actual third-party product logos or trademarked or copyright protected images. Use generic images, and a different color scheme, font and “look and feel” rather than the actual product logo.

Material edits or other modifications to Fluent Creative and/or approved Publisher Creative are not permitted without prior written approval from Fluent.

The principles set out herein are intended to provide guidance on permissible advertising practices and enable the submission of compliant Publisher Creative for consideration by Fluent.

II. Basic Advertising Principles

These principles apply to all advertising across all mediums and platforms, including traditional advertising forms (such as print, radio, tv, and email) and other advertising forms (Internet, software, and social media) on desktop, mobile, and other devices or platforms.

Claims Must Be Truthful. Truthful claims are claims that contain accurate content – ads must not contain false information.

Claims Must Be Accurate – Not Misleading or Deceptive. Claims in ads must set out accurate information concerning the offer on the Fluent website. Even if a claim contains accurate information, it may be misleading if it the overall impression it creates concerning the advertised Fluent website is inconsistent with the reality of the offer.

Claims Must Be Capable of Substantiation. All claims must be able to be supported with facts and evidence. All claims (both express and implied) must be substantiated prior to public display or dissemination to consumers. Substantiation is required for all reasonable interpretations of a claim. In other words, if a claim can reasonably be interpreted in several different ways, substantiation is required for each reasonable interpretation.

Material Terms Must Be Disclosed. A material term is a term that an average consumer would reasonably consider necessary to make an informed decision or action. In other words, material terms include information that is material to the consumer’s decision. An ad should convey all information that is material to the consumer’s decision or action. Failing to state a material term, such as the fact that a purchase is required, can itself be misleading. If a reasonable consumer would find a claim misleading without additional or qualifying information, that information is material and must be disclosed. Remember – the ad’s overall impression is what matters.

Disclosures Must Be Consistent with Underlying Claim. Disclosures must not be contradicted or be inconsistent with the claims presented in an advertisement. A contemporaneous or later disclosure cannot be used to “explain away” information or contradict the claim itself.

Disclosures Must Be Made in a Clear and Conspicuous Manner – Disclosures of material information must be clear and conspicuous, which means they must be difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers. To determine whether a disclosure is clear and conspicuous, consider the three Ps:

Prominence (size, type, color) – Can consumers see the disclosure?
Placement (proximity to the claim it qualifies or other relevant information) – Is the disclosure in a place where ordinary consumers are likely to look? A disclosure below a call to action (such as “click here”) may not be seen. Is the disclosure close to the claim it relates to? A disclosure should not be hidden in a page footer or buried in text that is remote from the underlying claim it relates to.

Presentation (level of clarity and coherence) – Is the disclosure recognizable and understandable by an ordinary consumer?

To ensure that a disclosure is clear and conspicuous, keep in mind the following:

1. In any communication that is solely visual or solely audible, the disclosure must be made through the same means through which the communication is presented.

1. In any communication made through both visual and audible means, such as a TV ad or an TikTok, the disclosure must be presented simultaneously in both the visual and audible portions of the communication – even if the representation requiring the disclosure is made in only one means.

1. A visual disclosure must stand out from accompanying text or other visual elements so that it is easily noticed, read, and understood.

1. An audible disclosure (e.g., streaming video) must be delivered in a volume, speed, and cadence sufficient for ordinary customers to easily hear and understand it.

1. In any communication using an interactive electronic medium, such as the Internet or software, the disclosure must be unavoidable. For example, a disclosure on a mobile platform must be visible and unavoidable to the consumer “above the fold”.

1. The disclosure must use diction and syntax understandable to ordinary consumers – i.e., plain speak!

1. Know your audience! If a representation or claim targets a specific audience, such as the elderly, the disclosure must be made in a manner that is easily noticeable and understandable to the audience. “Ordinary consumers” includes reasonable members of the group being targeted by an ad.

Overall Net Impression Matters. The overall net impression of the ad must comply with all of the principles set out herein. Ads must be reviewed in their totality from the viewpoint of the reasonable consumer.

III. Considerations for Email Marketing

All email marketing must comply with Applicable Laws and Requirements (as defined in Fluent’s Terms and Conditions), including the CAN-SPAM Act, a law that sets out the rules for commercial email. All email marketing must abide by the below requirements:

Identify the email message as an ad. You must clearly and conspicuously disclose that your message is an advertisement.

Do not use materially false or misleading header information. This includes the source, destination, and routing information attached to an email, including the originating domain name and originating email address, and any other information that appears in the line identifying the sender of the message. “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message. You may use a traceable, publicly registered domain name (which may include one of the Fluent-provided “friendly froms”) or your name or registered d/b/a, as applicable. The “To” line shall use the intended recipient’s email address.

Do not use deceptive subject lines. The subject line must accurately reflect the content of the message. Misleading subject headings include headings that imply any prior person personal or business relationship; contain any personal names or confirm information/prizes; or imply that the email is a response to the recipient.

Tell recipients how to opt out of receiving future emails. Emails must include clear and conspicuous notice of the opportunity to decline to receive future emails from you, Fluent, or any other sender on Fluent’s behalf – in other words, you must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you, Fluent, or anyone acting on Fluent’s behalf in the future.

Include a functioning return email address or other Internet-based mechanism that can be used to submit opt-out requests. Provide a return email address or another straightforward, Internet-based way to allow people to submit requests not to receive future messages from you, Fluent, or any other sender on Fluent’s behalf. You are not permitted to charge a fee for opt-outs, require a recipient to give you any personally identifying information beyond an email address, or make a recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Any opt-out mechanism you offer must be able to process opt-out requests for at least thirty (30) days after an email is sent. Make sure your spam filter does not block opt-out requests.

Honor opt-out requests promptly. You must honor a recipient’s opt-out request within ten (10) days.

Tell recipients where you are located. Your email must include your valid physical postal address. This can be your current street address, a post office box that you have registered with the U.S. Postal Service, or a private mailbox that you have registered with a commercial mail receiving agency established under Postal Service regulations.

IV. Considerations for Influencer Marketing

All influencer marketing must comply with Applicable Laws and Requirements (as defined in Fluent’s Terms and Conditions), including the Federal Trade Commission’s Guides Concerning Use of Endorsements and Testimonials in Advertising (“Endorsement Guides”) and Disclosures 101 for Social Media Influencers. All influencer marketing must disclose any material connection between influencer and brand, product, service, or good(s) being promoted. Influencers are required to disclose if they have a financial, employment, personal, or family relationship with the brand, product, service, or good(s) they are promoting. All such disclosures must comply with the basic principles set out in this document. Below are some key considerations to keep in mind:

Disclosures must be placed in a way that is hard to miss and made in simple and clear language (e.g., “Advertisement,” “Ad,” “Sponsored”). Influencer content should avoid the use of vague or confusing terms like “sp,” “spon,” or “collab,” or stand-alone terms like “thanks” or “ambassador,” and stay away from other abbreviations and shorthand when possible.

Disclosures must be provided in the same form(s) as the endorsement itself. For example, if an influencer is making an endorsement in a video, material disclosures should be made in the video itself and in the video’s description.

Disclosures should be in the same language as the endorsement itself.

V. Prohibited Misrepresentations

The below prohibited misrepresentations apply to advertising of all Fluent products, regardless of specific product line (e.g., Rewards, Sweepstakes, Jobs, Samples and Savings/Survey Voices).

Do not misrepresent that any consumer has won or been specially selected to receive anything of value (e.g., a gift card, check, cash-value deposit or other cash equivalents, a mobile device, or any other good) in exchange for completing tasks, disclosing personal information, making purchases, or taking other action.

Do not misrepresent that consumers will receive anything of value (e.g., a gift card, check, cash-value deposit or other cash equivalents, a mobile device, or any other good) in exchange for personal information, without any other cost or obligation.

Do not misrepresent that consumers will receive anything of value (e.g., a gift card, check, cash-value deposit or other cash equivalents, a mobile device, or any other good) in exchange for completing a survey, without any other cost or obligation.

Do not misrepresent that anything of value (e.g., a gift card, check, cash-value deposit or other cash equivalents, a mobile device, or any other good) is available only for a short period of time or in a limited quantity.

Do not misrepresent that you or Fluent are, represent, or are affiliated with, any third-party businesses. Do not state or imply any representation or affiliation with any third-party businesses.

Do not misrepresent the amount of time in which a consumer will receive anything of value (e.g., a gift card, check, cash-value deposit or other cash equivalents, a mobile device, or any other good).

Do not misrepresent the need for promptness or urgency in responding to any advertising, marketing, or promotion. Do not state or imply an artificial sense of urgency, scarcity or selectivity, unless the claim can be substantiated.

Do not misrepresent any fact material to consumers concerning anything of value (e.g., a gift card, check, cash-value deposit or other cash equivalents, a mobile device, or any other good), including any material restrictions, limitations, or conditions.

IV. Product Specific Rules for Publisher Content

Rewards

Do not misrepresent the monetary obligations a consumer is likely to incur to obtain a reward. Any advertisement that directly or indirectly represents (expressly or by implication) that consumers can earn, qualify for, or receive a reward from Fluent or a Fluent website must clearly and conspicuously disclose that to qualify for a reward, a consumer will incur monetary obligations. Examples include a “Paid Participation Required” disclosure or similar language (“Purchase Required,” “Payment Required”). See the Note above for additional options.
- Do not use the word “free” or other words and phrases that are synonymous, such as “no cost” or “complimentary.” Instead, inform consumers that “Paid Participation [is] Required.”
- If the advertisement relates to Venmo, PayPal or similar cash application, do not imply that there is “free” cash available, or that cash is readily available without material additional steps.

Do not state or imply that a reward will be received in exchange for providing personal information, without any other cost or obligation.

Do not state or imply that consumers have won, can win or were specially selected for a reward. Do not state or imply that Rewards are a sweepstakes, games of skill or there is an element of chance involved in getting a reward.

Do not state or imply that all consumers must do is complete a survey, without any other cost or obligation, to obtain a Reward.

Do not state or imply that all consumers must do is ‘verify information’, ‘confirm shipping details,’ or otherwise suggest, directly or indirectly, that a reward is ready to be ‘claimed’.

Do not state or imply that a reward is available only for a short period of time or in a limited quantity unless that is the case and can be substantiated. Do not misrepresent the need for promptness or urgency in responding to any advertising, marketing, or promotion of a reward.

Do not misrepresent the amount of time in which a consumer will receive a reward.

Do not misrepresent any other fact material to consumers concerning a reward, such as: the total costs; any material restrictions, limitations or conditions; or any aspect of the benefits, nature, or central characteristics of a reward.

Do not state or imply that the opportunity to qualify for a reward is an employment opportunity.

Do not state or imply that a reward is tied to any government program, including unemployment benefits or other government assistance, grant, loan or payment, or any employment opportunity.

Do not state or imply that a reward is tied to anything related to COVID-19 or the pandemic.

Sweepstakes

Do not state or imply to consumers that they have won a prize or a sweepstakes or have been selected to receive a gift or prize.

Do not state or imply that there are any purchase requirements without clearly and conspicuously disclosing that there is a no-cost alternative means of entry.

Jobs

Do not represent that any employment opportunity is guaranteed.

Do not state or imply that a particular job is currently available or searchable unless you can substantiate the job’s availability/searchability.

Do not represent that any consumer has been specially selected to apply or schedule an interview for a job with a specific employer. Do not state or imply that a consumer has an interview scheduled or to be scheduled.
Do not represent that you or Fluent are, represent, or are affiliated with any specific employer hiring to fill an open job.

Do not misrepresent any other fact material to consumers concerning any employment opportunity. Any material facts concerning any employment opportunity must be disclosed.

All claims relating to the nature, benefits, or characteristics of an employment opportunity (e.g., claims about hourly wages or hour requirements) must be substantiated prior to public display or dissemination to consumers.

Samples and Savings/Survey Voices

Do not state or imply that a particular product sample is available.

Do not state or imply that a consumer will qualify for a paid trial.

Do not make temporal claims concerning the availability of compensation for survey completion, e.g., “Earn $100 today!”

Do not make claims about amounts that can be earned on Survey Voices sites unless they can be substantiated as amounts that are typically earned on Survey Voices sites.

Do disclose the material terms of the Survey Voices sites, including that the sites will connect consumers with third party sites that may pay them for survey completion.