Last updated: 5/7/2024

These Terms and Conditions (“Ts & Cs”) will govern and are incorporated by reference into the Insertion Order(s) (“IO”) entered into by and between RewardsFlow LLC (“RewardsFlow”) and the Publisher whose name appears on the IO and are effective as of the date set forth in the IO.  These Terms and the IO(s) are referred to as the “Agreement.”  If there is a conflict between these Ts & Cs and an IO, the IO shall prevail. RewardsFlow reserves the right to modify these Terms at any time by posting the revised Terms to our website.  Publisher’s continued use of the services after any such modification will constitute Publisher’s acceptance of such modification.  If you do not wish to accept any such modification to the Terms, you must provide notice of termination.

RECITALS

WHEREAS, RewardsFlow operates websites in certain countries outside the United States (each a “Country”);

WHEREAS, RewardsFlow wishes Publisher to provide certain Internet-based lead generation, customer acquisition and/or other related services for and on behalf of RewardsFlow for the campaigns listed in the IO (“Campaigns”) on a country-by-country basis as specified in the applicable IO.

NOW, THEREFORE, in consideration of the foregoing and the payments set forth in the applicable IO by Publisher to RewardsFlow (receipt of which is hereby acknowledged by RewardsFlow), RewardsFlow and Publisher, intending to be legally bound hereby, agree as follows:

• DEFINITIONS AND INTERPRETATION:

• Capitalized terms used but not defined in these T&Cs shall have the meanings in the IO.

• In addition, the following terms will have the meanings set for the below:

1.2.1           “Applicable Laws” shall mean all applicable laws, statutes, rules, regulations and policies relating to either party, including, without limitation, to online and direct marketing and lead generation, advertising, commercial email,  telemarketing, SMS text messaging, consumer protection, and including the  applicable Country specific laws, rules and regulations and the applicable Data Privacy/Security Laws (as defined below), both as set forth in Schedule 1;

1.2.2      “Controller” shall have the meaning attributed to it under the Applicable Laws;

1.2.3      “Creative” shall mean the advertisement and any components or elements thereof provided by RewardsFlow to Publisher, including banner ads, emails including the body, header and subject lines, ad copy, contextual ads and/or other content that comprises the Creative. Creative shall also include advertising content created by Publisher, provided such creative has been approved by RewardsFlow as provided for in clause 3 below;

1.2.4      “Data Privacy/Security Laws” means the data privacy and data security laws applicable in a Country as set forth on Schedule 1.

1.25.      “Duplicate Lead” shall mean a Lead which was previously sent to RewardsFlow by Publisher in the prior thirty (30) days;

1.2.6      “Fraudulent Lead” shall mean a Lead that is the product of fraud, manipulation of information, or incentivised marketing (unless otherwise permitted in an IO), on the part of Publisher or any of its affiliates or is included in a batch of Leads that have the indicia of being Fraudulent Leads, including without limitation: having click-through rates that are much higher than industry averages where solid justification is not evident; having only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; having been shown to be fraudulent leads as determined by RewardsFlow’s clients; or using fake redirects, automated software, and/or fraud to generate clicks or leads;

1.2.7      “Invalid Lead” shall mean a Lead which does not contain valid data inputs for all of the required fields;

1.2.8      “Lead” shall mean a lead of an individual resident in the intended Country generated by Publisher using a permitted marketing method and sent to RewardsFlow;

1.2.9      “Personal Data” shall have the meaning attributed to it under the Applicable Laws;

1.2.10   “Process” shall have the meaning attributed to it under the Applicable Laws;

1.2.11“Publisher Databases” shall mean Publisher’s proprietary database of email addresses;

1.2.12   “Publisher Media” shall mean Publisher Databases and Publisher Websites;

1.2.13   “Publisher Websites” shall mean websites owned and/or operated by Publisher;

1.2.14   “Qualified Lead” shall mean Leads acquired when an individual provides complete registration data on a Site through a pre-approved opt-in method as specified in the applicable IO and who meets RewardsFlow’s screening criteria as described in the IO, who is acquired within the Permitted Parameters and which is not an Invalid Lead, Duplicate Lead or Fraudulent Lead; and

1.2.15   “RewardsFlow Site” means a website owned and operated by RewardsFlow.

2           SERVICES:

• Publisher will display the Creative and/or perform Lead generation services solely in the marketing channels and in the Country set forth and/or described in the applicable IO (the “Services”).
• Publisher undertakes, warrants and represents that the Services will be provided:
  • with reasonable care and skill; and
  • within the timescales set out in the IO, or if not, within a reasonable time period.
• Except as otherwise permitted in the IO and in compliance with clause 3, Publisher shall use the Creative provided by RewardsFlow. RewardsFlow hereby grants to Publisher during the term of an IO 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 such Creative and all its constituent parts.
• The parties understand and agree that RewardsFlow is the sole owner of any and all intellectual property rights associated with the Creative.
• In connection with generating Leads hereunder, Publisher is authorised to market the RewardsFlow Sites, products and/or services as provided for in the IO which may include:
  • via email to those consumers in Publisher Databases in compliance with Applicable Laws;
  • to consumers on Publisher Websites;
  • via SMS/text messaging but only where SMS/text messaging is expressly permitted in an IO; and
  • by such other means as provided for in an IO.
• Publisher shall maintain and provide to RewardsFlow upon request records of the dates when particular Creatives were publicly used or disseminated to
• Publisher shall target Campaigns solely to residents of the Country specified in the IO and using the marketing methods specified for such Campaign in the IO. Publisher shall use reasonable commercial efforts to filter out and block consumers who are not resident of the intended Country.

• Each party acknowledges that for the purpose of the Applicable Laws, RewardsFlow and Publisher are each independent Controllers in respect of any Personal Data processed in connection with this Agreement and each shall be responsible for its own compliance with the Applicable Laws.

3           CREATIVE CHANGES:

• Publisher may not edit or otherwise modify the Creative or any component thereof which has been supplied by RewardsFlow without RewardsFlow’s prior written consent or as otherwise permitted by the IO. All modifications to RewardsFlow supplied Creatives must be approved by RewardsFlow prior to use.
• If permitted in the IO, Publisher may use its own Creatives. Such Creatives must comply with the marketing restrictions and creative guidelines set forth in clause 4 and in attached Schedule 1. RewardsFlow may modify the marketing restrictions and creative guidelines from time to time which will take effect when provided in writing to
• Publisher agrees, prior to the public use or dissemination to consumers of any Creatives used by Publisher to advertise, promote, market, offer for sale, or sell any RewardsFlow goods or services:
  • to provide RewardsFlow with copies of all Creatives to be used by Publisher, including text, graphics, video, audio, and photographs that are materially different than previously supplied or approved by RewardsFlow; and
  • to maintain records of:
    • Publisher Media including each location Publisher maintains, or directly or indirectly controls, where the Creatives will appear, including the URL of any Publisher Website; and
    • each location to which a consumer will be transferred by clicking on any hyperlinks, in the Creatives including the URL of any website other than a RewardsFlow provided
  • MARKETING RESTRICTIONS AND CREATIVE GUIDELINES:

• Except as otherwise permitted in an IO or with RewardsFlow’s prior written approval:

• Publisher shall not use any “incentivised marketing” 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, nor create the appearance of incentivised marketing or otherwise attempt to induce consumers to provide Lead-related information through use of any other

• Publisher shall not:

• include or promote any Creative or Leads by or through any blogs, news articles, editorials, native advertising, or other social media outlets; or

• use any endorsements or testimonials in connection with providing Lead generation services for

• Publisher shall not display a Creative:

• before the “Start Date” specified in the IO;

• and after the “End Date” specified in the IO;

• after any cap or volume limitation set forth in the IO has been met; or

• as otherwise specified in a written notice from RewardsFlow (the “Permitted Parameters”).

• RewardsFlow shall not pay Publisher for Leads delivered using a Creative outside of the Permitted Parameters.

• Publisher shall not generate Leads, and RewardsFlow shall not be required to accept Leads generated, in connection with Publisher Websites that produce, promote, relate to or have characteristics of Prohibited Conduct. For purposes of this Agreement, Publisher engages in “Prohibited Conduct” by:

• modifying a Creative in any way, or utilising any Creative, that was not provided or pre-approved by RewardsFlow;
• placing a Creative on specifically non-approved Publisher Media, or in such a fashion that may be misleading or deceptive to a consumer;
• serving a Creative, or driving traffic to a Creative, using any downloadable software or applications without RewardsFlow’s prior written approval;
• using invisible methods or auto-spawning browsers to generate Leads that are fraudulent or that are not the affirmative act of a consumer;
• engaging in any advertising via facsimile or telemarketing including any advertising to telephones, mobile phones or other portable electronic devices via SMS, Smart Messaging, EMS, MMS or any other type of text messaging service or protocol unless pre-approved by RewardsFlow in an IO or other confirmed writing;
• violating the terms of service of, or Abusing, social media websites such as Facebook, Pinterest, Craigslist, or Twitter to drive traffic to the Creative or Publisher Media. For purposes of this clause 4.1.5, “Abusing” shall include spamming, sending any unsolicited mass mailing or instant messaging, using social media websites for commercial purposes (without RewardsFlow’s prior written consent), making any automated use of the systems, such as using scripts to send bulletins or other communications, or any other activity that violates the site’s applicable terms of service;
• attempting in any way 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 RewardsFlow that allow RewardsFlow to measure Creative performance and/or assure Publisher Media transparency;
• intentionally soliciting personal information from any consumer under the age permitted in the applicable Country;
• engaging in any unlawful commercial activities;
• engaging in any conduct that RewardsFlow objects to, in writing, after giving two (2) business days’ notice of such objection; and/or
• violating any Applicable Laws.

• Publisher shall not place any Creative or other intellectual property made available to Publisher in connection with its performance under the Agreement on Publisher Websites that contain, promote, reference or have links to:

• web pages with no content;
• 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 RewardsFlow to be unsuitable or harmful to RewardsFlow’s reputation;
• 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;
• intentionally deceptive acts or practices;
• personal web pages, free hosted pages or Publisher Websites under construction or on web pages not in the language(s) required in the Country as set forth on Schedule 1;
• charity clicks/donations, paid to surf, Active X downloads, all affiliate links or incentivised traffic where consumers have some sort of incentive to click on Creative; or
• activities generally understood as Internet abuse including the sending of unsolicited bulk electronic mail or the use of spyware.

• Publisher may not 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, without limitation, RewardsFlow, or any derivative or misspelling of any such trademark, service mark or brand name. Publisher must provide all text and proposed keywords/phrases that it would like to bid on (“Keyword Text”) to RewardsFlow for approval or editing, prior to submitting same to any Paid Search Network or Paid Inclusion Network. Without limiting the foregoing, Publisher must not violate the rules, requirements and regulations of any Paid Search Network or Paid Inclusion Network, and Publisher shall fully indemnify and hold harmless RewardsFlow from and against any and all liability arising from or in connection with any such violation.

• Publisher may not link directly to a RewardsFlow website, directly from the sponsored links and/or search results generated in connection with Paid Search Network or Paid Inclusion Network

• If Publisher or its affiliates are sourcing Leads from mobile sources, Publisher shall use reasonable endeavours to ensure that any mobile ads served are not disruptive to the user experience, e.g., users must be able to close out of any Creatives served.

• The Creative used must comply with the other requirements set forth in these T&Cs including only using an approved Creative and not using a Creative that is deceptive or misleading.

• EMAIL CAMPAIGNS:

• The provisions of this clause 5 are applicable only if Publisher is using email to provide Lead generation services. Publisher shall use best efforts to comply with the Applicable Laws in the Country relating to Lead generation using email. Publisher warrants, represents and undertakes that all email campaigns shall comply with the provisions of this clause 5:

• Publisher shall at all times:
  • only use the RewardsFlow provided email Creative or email Creative approved in compliance with clause 3;
  • maintain compliance with Applicable Laws, in particular those set forth in Schedule 1; and
  • meet the marketing requirements set forth in this clause 5, clause 4 and Schedule 1.
• Publisher represents and warrants that the email addresses included in the Publisher Database and used by Publisher to mail RewardsFlow’s Creative shall be from Country residents where the users have provided a positive indication of consent (opted in) as required by Applicable Laws to receive commercial emails from Publisher specifically and none of the email addresses shall be obtained through email harvesting or dictionary attacks or appear on the Publisher’s suppression list (as detailed at clause 5.5). Publisher shall collect and maintain proof of opt-in consent for 24 months from the date of receipt and shall supply, upon RewardsFlow’s request, the name, date, time and IP address where the user signed-up and/or gave affirmative consent to Publisher to be contacted with email messages.

• Publisher is solely responsible for all consumer complaints that it receives in connection with email campaigns that it conducts 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 unauthorised usage complaints received from consumers, regulatory agencies or otherwise.

• Publisher shall:

• make adequate disclosures to those consumers in its Publisher Database regarding its email, privacy and security policies;

• timely respond to all complaints after Publisher becomes aware of the complaint; and

• provide RewardsFlow with a copy of every complaint related to RewardsFlow, promptly, upon Publisher’s receipt thereof.

• Every email sent by Publisher for a RewardsFlow campaign shall:

• contain accurate routing information in the header and shall not include false or misleading header information, false or misleading registrations for email accounts, or use IP addresses whose purpose is to conceal the email’s origin and shall include in the header;

• a traceable publicly registered domain name which may include one of the RewardsFlow-provided “friendly froms”; and

• the Publisher’s company name or and registered company number;

• with regard to the subject line, not utilise a subject line that;

• is misleading;

• implies any prior personal or business relationship;

• that contains any personal names, confirms information/prizes; or

• implies the email is a response to the recipient;

• not contain a third-party domain name without the third party’s written permission;

• not seek or obtain unauthorised access to a user’s computer or connected device that enables sending any commercial email;

• if the email is sent on RewardsFlow’s behalf, contain the requisite identifying information relating to RewardsFlow as required by that Country’s Applicable Laws and shall include at a minimum RewardFlow’s physical mailing address and customer service/unsubscribe/opt-out link. If Publisher is acting as the “sender” of the email, include the requisite identifying information relating to Publisher as required by that Country’s Applicable Laws and shall include at a minimum Publisher’s physical mailing address and customer service/opt- out/unsubscribe link;

• contain the intended recipient’s email address in the “to” line;

• clearly and conspicuously identify the emails as advertisements; and

• include the identifiers and disclaimers that RewardsFlow assigned to the email.

• The opt-out link or electronic address must remain valid for at least sixty (60) days after delivery of the email, and the opt-out domain must match the sending domain.

• Publisher shall not place commercial offers on the opt-out page and the opt-out mechanism must be free of charge to recipient and use the same electronic means by which the email was sent or other electronic means, if not practicable. Further, Publisher shall not:

• complicate the opt-out process (ex: using CAPTCHA or any other interim pages);

• require the recipient to pay a fee for opt-out;

• require the recipient to provide any information other than the email address and opt-out preferences;

• require the recipient to take any steps other than send a reply email message or visit a single Internet Web page to opt-out;

• alter or cause to be altered any transmission data; or

• install or cause to be installed any computer

• Publisher must provide confirmation to the recipient that the opt-out request has been adhered to and inform the recipient that emails shall be stopped within 5 business days of receipt of an opt-out request. Publisher shall accordingly then stop all emails within 5 business days.

• Publisher is prohibited from selling or otherwise transferring email addresses of persons who have opted-out.

• RewardsFlow will make available to Publisher a regularly updated suppression list containing current unsubscribe requests in conformance with the Applicable Laws through Optizmo, its third-party suppression list management service. Publisher shall update its own suppression list at least 5 days prior to sending any emails on RewardsFlow’s behalf and shall include in such list any unsubscribe requests that it receives for RewardsFlow offers.

• Publisher acknowledges that Optizmo enables RewardsFlow to monitor whether Publisher is updating its suppression lists on a timely basis and if Publisher fails to do so, RewardsFlow reserves the right to take disciplinary action including terminating Publisher’s right to send emails on RewardsFlow’s behalf. Publisher will not send emails to any address included in its internal or RewardsFlow’s suppression lists and will not sell, license or otherwise make the suppression lists available, in whole or in part, to any third party or use it for any purpose other than as provided for in this clause 5.12.

• RewardsFlow may request Publisher to investigate any publication or other display of its Creatives which RewardsFlow reasonably believes may have violated one or more of the Applicable Laws and/or RewardsFlow’s Marketing and Creative Guidelines as may be provide in writing from time to time. Publisher shall promptly commence an investigation of the incident and report the results of the investigation to RewardsFlow and comply with RewardsFlow’s response thereto which may include identifying the sender of the email.

• Publisher shall maintain for at least twelve (12) months after termination of this Agreement, all records evidencing opt-in consent, including, without limitation:

• the opt-in information set forth in clause 5.3;
• posted privacy policies of source websites as of date of consent; and
• any other information collected at time of opt-in.

Publisher agrees to produce such records to RewardsFlow within one (1) business day of RewardsFlow’s request.

• RewardsFlow shall have no obligation to pay for any Lead that:

• does not fully comply with the terms set forth in this clause 5;

• results from a mailing domain address that is not openly and accurately registered to Publisher or its agent, or is misleading or deceptive in any other manner; or

• contains any false or fraudulent information.

• RewardsFlow has the sole discretion to determine if a violation of this clause 5 has occurred.

• Any email that is in violation of this clause 5 shall not be a Qualified Lead and RewardsFlow will not compensate Publisher in connection with that Lead.

• Publisher shall fully defend, indemnify and hold harmless against any allegation, claim, action, judgment, loss, damage, or expense (including reasonable attorney legal fees and costs) arising out of any breach of this clause 5.

• RULES APPLICABLE TO PUBLISHER NETWORKS:
  • If Publisher has a network of third-party publishers and an IO between the parties expressly permits Publisher to allow such third parties (each, a “Network Member”) to provide or refer potential or actual customers to RewardsFlow, then the following provisions shall apply:

• Publisher shall not make any Campaign available “publicly” but rather may only permit Network Members to run the Campaign that Publisher:

• has vetted for compliant business practices; and

• has entered into agreements with such Network Members which contain, among other provisions: (i) an agreement to not modify the Creative except as provided for in clause 3 above, (ii) to comply with the Marketing Restrictions and Creative Guidelines contained in clause 4 and if such Network Member is using email to provide lead generation, clause 5, and (iii) representations, warranties, covenants and indemnification substantially similar to those set forth in clauses 2, 12 and 15 below.

Publisher shall require each Network Member who runs a Campaign to provide Publisher with the following information the Network Member’s registered company name and the information set forth on Schedule 1.

• Publisher shall obtain and retain the same information set forth in clause 6.1.2 above from each of its Network Members prior to their use of any Creatives and upon request, and to provide RewardsFlow with proof of having obtained such information;

• if RewardsFlow determines that use of any Creatives by a Network Member or a Network Member’s marketing practices do not comply with this Agreement, RewardsFlow shall inform the Publisher and Publisher shall procure that the Network Member immediately stops using such Creatives or ceases its noncompliant marketing practices and, upon RewardsFlow’s request, provide RewardsFlow with the identity and contact information of such Network Member;

• Publisher shall procure that each Network Member complies with the provisions of clause 5; and

• if Publisher is permitted to use Network Members, Publisher shall be responsible for the actions and/or omissions of its Network Members and Publisher shall indemnify RewardsFlow for any loss or damage caused by its Network Members.

7           COMPLIANCE MONITORING AND CONSEQUENCES OF NON-COMPLIANCE:

• RewardsFlow will actively monitor Publisher activity using a combination of its own proprietary software and third-party monitoring services such as Lashback and Optizmo to detect Invalid Leads, Duplicate Leads and Fraudulent Leads and whether a Publisher is timely updating its suppression list in compliance with clause 5. If RewardsFlow reasonably believes that Publisher is submitting Fraudulent Leads, RewardsFlow will hold Publisher payment in ‘Pending Status’ until Publisher has satisfactorily provided evidence that Publisher is not submitting Fraudulent Leads. RewardsFlow shall not be obligated to pay for Invalid or Duplicate Leads or Fraudulent Leads which have been timely disputed as provided for in this clause 7.

• RewardsFlow shall send Publisher notice no more than 30 days after the end of the month in which the Lead was delivered of any Leads that it is disputing. The dispute notice shall identify the Leads disputed and the grounds that such Leads are being disputed. The parties shall use commercially reasonable efforts to resolve disputed Leads. Disputed Leads which are determined to be Invalid Leads, Duplicate Leads or Fraudulent Leads and for which Publisher is not paid are referred to as “Scrubbed.” If Publisher is unable to reasonably prove that Publisher is not committing fraud and/or attempting to supply Fraudulent Leads, Publisher will forfeit the specific commission for such allegedly Fraudulent Leads and Publisher’s account will be

• If Publisher uses any unapproved Creative or otherwise materially violates the Marketing and Creative Guidelines set forth in clause 4 or the rules applicable to email marketing set forth in clause 5, RewardsFlow may:

• disable any connection between RewardsFlow and the Creatives used by Publisher to engage in such prohibited acts or practices;

• immediately terminate this Agreement upon two (2) business days prior written notice;

• notwithstanding anything to the contrary in this Agreement, file suit to seek injunctive, equitable, or other relief it deems necessary to enjoin and remedy Publisher’s noncompliant use of Creatives. Publisher hereby irrevocably consents to personal jurisdiction and exclusive venue in the United States District Court for the Southern District of New York if such Court can exercise jurisdiction over the matter for any action brought by RewardsFlow arising out of or in connection with this Section 7.3.3.  Subject to the foregoing, this Section 7.3.3 shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law;

• withhold all payments due to Publisher hereunder attributable to the unapproved Creative or marketing tactics in violation of this Agreement; and

• where a Publisher uses unapproved Creative, hold Publisher liable for any and all damages and/or claims attributable to the unapproved Creative without regard to any of the limitations of liability contained

• If Publisher is permitted to use Network Members, Publisher shall be responsible for the acts and omissions of its Network Members and the provisions of clauses 7.1 to 7.3 shall be applicable to such Network

• REMOVAL OF CREATIVES:

Publisher may, in its complete discretion, reject, cancel or remove at any time any Creative for any reason without prior notice to RewardsFlow. Publisher must notify RewardsFlow following the rejection, cancellation or removal of any Creative from the service within one (1) business day.

• TERM:

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. These T&Cs shall continue until the last IO governed by these T&Cs expires. The Agreement, including any outstanding IOs, may be terminated by mutual consent of the parties but may be terminated by either party for any reason whatsoever upon two business days prior written notice. All non-disputed amounts due to Publisher will be paid during the next billing cycle. If Publisher defrauds the system, then RewardsFlow may revoke payment specifically related to such violation.

10        PAYMENT AND PAYMENT TERMS:

• RewardsFlow will pay for Qualified Leads on the basis and in the currency specified in the IO or if no currency is specified, payment shall be in U.S. dollars. Publisher will invoice RewardsFlow on a monthly basis 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 RewardsFlow to Publisher pursuant to the terms of this Agreement. In the case of any dispute between the parties as to the number of Qualified Leads, RewardsFlow’s numbers shall prevail. If a Publisher does not render an invoice within 6 months after the month in which the Qualified Leads were generated, RewardsFlow shall have no liability to pay for such Qualified

• RewardsFlow shall make all payments to Publisher within 30 days of the invoice date or on such payment terms specified in an IO. All payments made to Publisher are exclusive of withholding, VAT or any sales or use or excise taxes and Publisher shall pay, any other applicable tax associated with such payment.

• If RewardsFlow fails to pay Publisher any sum due under the Agreement, Publisher shall be entitled to charge interest on the overdue payments under the Agreement at an annual rate of the lower of 1.0% per month or the highest rate permitted in the Country or as otherwise set forth in Schedule 1. Such interest shall accrue daily and be calculated on a daily basis on all overdue amounts from the date when payment first became due until the date payment is made.

• Except as otherwise provided by the Agreement, the parties shall keep, maintain and preserve, for the term of this Agreement and for one (1) year thereafter, accurate records relating to amounts due hereunder and compliance with this Agreement’s terms (the “Relevant Records”). Each party shall have the right no more than once per calendar year to audit the Relevant Records of the other party to verify fulfilment of the other party’s payment and/or compliance obligations pursuant to this Agreement. Each 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 their 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 clause 10.3

11        WARRANTIES:

• RewardsFlow and Publisher each represent and warrant to the other that:

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

• this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms.

• Publisher represents, warrants and undertakes to RewardsFlow:

• it will not fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation;

• it will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the site tags, source codes, links, pixels, modules or other data provided by or obtained from RewardsFlow that allows RewardsFlow to measure ad performance and provide its services;

• all of its services associated with this Agreement comply with Applicable Laws; and

• any Creatives created or developed by Publisher other than Creatives supplied by RewardsFlow will not infringe or otherwise violate the intellectual property rights of any third party.

• RewardsFlow represents, warrants and undertakes to Publisher that:

• it holds the required intellectual property rights and/or licenses necessary to license the Creatives it supplies to Publisher;

• the Creatives provided to Publisher (and their posting, display, use, reproduction, distribution, and transmission by Publisher) do not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights and do not violate Applicable Laws and do not contain any Prohibited Materials;

• it will maintain appropriate physical, technical and organisational measures to protect all non-public personal information, sales, registration, or data provided by or about a user against accidental loss or unauthorised access, use, disclosure, alteration, or destruction.

12            CONFIDENTIALITY:

• During the term of this Agreement, each party (the “Disclosing Party”) may disclose to the other party (the “Recipient”) certain information (either oral, written or digital) including, but not limited to, 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, marketing or financial data (collectively, “Confidential Information”). Confidential Information shall also include the terms of this Agreement. Recipient agrees to use at least the same degree of care, but not less than reasonable care, to prevent disclosure of Confidential Information to third parties as Recipient would use to protect its own Confidential Information. The term “Confidential Information” shall not include any information which: (a) 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 the Recipient in violation of this Agreement, (b) was or becomes available to the Recipient on a non- confidential basis from a source other than the Disclosing Party, (c) is independently developed by the Recipient without the use of any Confidential Information, or (d) was in the possession of the Recipient prior to being disclosed to the Recipient by the Disclosing

• Recipient shall not disclose to any third party, nor permit any other person or entity access to the Disclosing Party’s Confidential Information, except as required by an employee, agent, officer, director, partner, or representative of such party in order to perform the obligations or exercise rights under this Agreement. 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 clause. 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 or entity other than those authorised by this Agreement. Notwithstanding the foregoing, RewardsFlow shall have the right to disclose the existence of this Agreement and refer to its relationship with Publisher for marketing and promotional

• Recipient may disclose the Disclosing Party’s Confidential Information upon the order of any competent court or government Prior to any such disclosure the Recipient shall, to the extent that doing so would not prejudice the Recipient or subject the Recipient to a fine or penalty, inform the Disclosing Party of such order and afford the Disclosing Party the opportunity to contest such disclosure.

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

• Each party agrees that, in addition to any other remedies that may be available, the Disclosing Party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Recipient, without limiting any other right and remedies to which the Disclosing Party may be entitled to at law, in equity or under this Agreement.

• DISCLAIMER OF WARRANTIES:

• Save as otherwise provided herein, each of the parties provides the Creatives, websites and the websites of its Network Members and partners, and Services and the Services of its Network Members and partners, 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

• LIMITATIONS OF LIABILITY:

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

• Except for indemnification obligations and as otherwise provided for herein:

• in no event shall either party be liable for any special, indirect, incidental or consequential damages (including, without limitation, for breach of contract, warranty, negligence or strict liability), or for interrupted communications, loss of use, lost business, lost data or lost profits, arising out of or in connection with this Agreement; and

• neither party be liable to the other party for an amount greater than the amounts paid by RewardsFlow to Publisher during the six months prior to the occurrence giving rise to the claim; unless there is a breach of cardinal obligations. In cases of violation of cardinal obligations, liability in the event of slight negligence is limited to the foreseeable damage. In the event of intent or gross negligence, the contractual partner shall be liable without limitation.

• INDEMNIFICATION:

• Publisher agrees to indemnify, defend and hold harmless (and keep indemnified and held harmless) RewardsFlow and its employees, agents, officers, directors, agents, subsidiaries, and affiliates against any and all claims, causes of action, judgments, demands, damages, losses or liabilities, including costs and expenses, damages, losses, interest, penalties (including legal costs (calculated on a full indemnity basis) and all other professional costs and expenses), suffered or incurred by RewardsFlow arising out of or in connection with:

• any claim made against RewardsFlow for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with:

• A Creative created or modified by Publisher: and/or
• The provision of the Services; and

• any breach by Publisher of clauses 4, 5, 11.2, and/or 12.

• RewardsFlow shall indemnify and hold harmless (and keep indemnified and held harmless) Publisher and its officers, directors, employees, representatives, agents, subsidiaries, and affiliates, from and against any and all third party claims, actions, liabilities, costs, expenses, damages, losses, interest, penalties and legal costs and all other professional costs and expenses suffered or incurred by Publisher, arising from, or in connection with any claim that a Creative provided by RewardsFlow infringes a third party’s intellectual property rights.

• 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 not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the Indemnifying Party. The Indemnified Party shall agree to Indemnifying Party’s sole control over the defence and any settlement of such claims; provided, however, that the Indemnifying Party shall not agree to any settlement that could adversely affect the rights or interest of the Indemnified Party without their express written consent. The foregoing indemnity obligations shall not apply in the event, and to the extent, that such claim is based on any action or omission of the Indemnified Party

• DISPUTE RESOLUTION:

• If any dispute arises under this Agreement, if applicable, the Parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the location set forth on Schedule 1. Any costs and fees associated with the mediation, other than fees associated with legal representation, shall be shared equally by the parties.

• If it proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties agree to resolve the dispute in accordance with clause 17.10.

17           GENERAL PROVISIONS:

• Neither Party shall have the right to assign or otherwise transfer its rights nor obligations under this Agreement except with the prior written consent of the other Party;

• Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

• If any provision or part-provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted and the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or

• These T&Cs together with any IO and Schedule 1 attached hereto constitutes the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral, regarding the subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.

• Save for RewardsFlow’s ability to amend clause 5 unilaterally, no variation of this Agreement or any provisions hereof shall be binding upon the parties unless made in writing and duly signed by both

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

• If the IO indicates the traffic in this Agreement is for the UK, then this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

• These T&Cs are deemed incorporated into an IO and will be effective when the IO is signed by RewardsFlow and Publisher. An IO may be signed in counterparts of which when executed shall constitute a duplicate of the original, but all the counterparts shall together construe the one IO.

• Any notice, approval or consent required or permitted hereunder shall be in writing and sent to the addresses set forth on the applicable IO and will be deemed to have been duly given upon (a) delivery, if delivered personally, (b) if posted by first-class post, within three (3) days of the date on the proof of postage which must be obtained, (c) if sent via overnight delivery service, on the date of delivery, or (d) if sent via email, upon receipt by the sender of electronically generated confirmation of delivery and opening by the

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

Schedule 1

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

Schedule 1

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