THIS MASTER PUBLISHER AGREEMENT, together with the Compliance Guidelines (attached hereto as Exhibit A), and any applicable Insertion Order (“IO”), whether physically attached hereto or incorporated by reference) (collectively, the “Agreement”) governs the relationship between Big Wave Media (“Company”) and you as a publisher (“Publisher”), as of the date of Publisher’s assent (“Effective Date”). The Agreement sets forth the terms and conditions governing Publisher’s provision of advertising inventory and related services pursuant to one or more Insertion Orders designated to Big Wave Media and/or its associated companies. The parties may also be referred to individually as a “Party” or collectively as the “Parties.”

WHEREAS:

1. 1. Publisher is in the business of providing advertising campaigns and/or marketing services to third parties, which may include lead generation, campaign management, call center services and management of customer loyalty programs (collectively, “Advertising Services”).
   2. Company is an advertising network that provides opportunities for advertising affiliates, such as Publisher, to provide Advertising Services for Company and its advertiser clientele (“Advertisers”) for an agreed upon fee.
   3. Publisher seeks to join Company’s advertising network and provide Advertising Services according to the terms and conditions contained in this Agreement, the Compliance Guidelines, and any IO.

NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties intending to be legally bound, agree as follows:

1. Master Agreement
   1. This Agreement governs the general terms and conditions of the relationship between Publisher and Company with respect to the Advertising Services. During the term of this Agreement, Publisher and Company may mutually agree to the specific components of the Advertising Services, such as payment model and permissible traffic types, and specify them in an IO, which may be provided to Publisher in the form of a written document. Once an IO is mutually accepted, it becomes part of this Agreement and cannot be cancelled except as detailed in Section 10 or through an IO amending the prior IO’s terms.
   2. Relationship of Documents. This Agreement, the Compliance Guidelines, and any IO accepted by the Parties will constitute the entire agreement between Company and Publisher with respect to the purchase, sale, and delivery of Advertising Services. In the event of any conflict between this Agreement and an IO, the terms of the IO shall prevail. Any terms or conditions stated by either Party in any other document that are different from, or in addition to, this Agreement or an IO, will be of no force and effect and are expressly rejected, and no course of dealing, usage of trade, or course of performance will be relevant to explain or modify any term expressed in this Agreement or any IO.
2. Company’s Network
   1. Participation in the Network. For purposes of this Agreement, the “Network” shall mean the combination of the web-based application, reporting, access to data, and advertising materials provided by Company that facilitate Publisher’s provision of the Advertising Services. Publisher’s participation in the Network is subject to the terms and conditions of this Agreement, the Compliance Guidelines, any IO, and Company’s express approval. Company’s approval of Publisher may be withheld or terminated at any point, in Company’s sole discretion, regardless of initial acceptance.
   2. Subject to the terms and conditions of this Agreement, and upon Company’s approval of Publisher, Company grants Publisher a revocable, non-transferable, non-exclusive limited license to use the Network and any data, reports, information, or analyses arising out of such use (the “Site Data”) solely for the purposes set forth in this Agreement.
   3. Whether communicated directly to Publisher or generally to the Network as a whole, Company may provide offers of advertising campaigns (the “Campaigns”). Campaigns shall set forth the advertisement and the amount and terms under which a Publisher may be entitled to payment. Publisher must be approved by Company to work on each individual Campaign and must only provide Advertising Services pursuant to any Campaign-specific terms provided by Company.
   4. Fraud; Suspension of Publisher. Without limiting any other provision of this Agreement, Company reserves the right, in Company’s sole and absolute discretion to terminate and/or suspend Publisher’s account and ability to provide Advertising Services (whether regarding a specific Campaign or as part of the Network as a whole), at any time without liability to Publisher, should Company determine, in its sole and absolute discretion, that Publisher has engaged in fraud, dishonesty, or any other misconduct as part of the Advertising Services (collectively, “Fraud”). If Company determines that Publisher has engaged in Fraud, Publisher will forfeit all payments received or owing for Publisher’s Advertising Services that are related in any way to the Fraud. If Publisher is notified that it is engaging in or has engaged in Fraud, then in addition to any other remedies available to Company, Publisher shall be responsible for all costs and legal fees arising from such Fraud. Upon notice by Company that an Affiliate (as defined in Section 3(b) below) is engaging in, or has engaged in, any activity prohibited by this Agreement, including Fraud, Publisher shall immediately terminate its relationship with such Affiliate with respect to the Network, and shall confirm said termination in writing to Company.
3. Responsibilities of Publisher
   1. Advertising Services. Publisher will develop Advertising Services which will be designed to (i) identify prospective customers in accordance with the target profiles designated by Company and (ii) secure confirmed contact and other specified consumer information for such prospective customers (collectively, “User Data“) through forms on either Company or Publisher websites, as specified in Campaigns terms or applicable IO. The Advertising Services may be facilitated by creating targeted sign-up landing pages and may include driving traffic to landing pages with targeted pop up/unders, banner advertisements, path traffic, contextual links, pay per click and natural search, email marketing and the development of specific niche websites, all as specifically designated in an IO.
   2. Publisher may distribute the advertising media through its Publisher network of third-party affiliates and sub-publishers (collectively, “Affiliates“) who access Publisher’s programs for the purpose of finding advertising content relevant to their user base and distributing such content to their users. All terms in this Agreement that apply to Publisher shall be deemed to apply to Publisher’s Affiliates, whether or not Affiliates are expressly mentioned. Publisher assumes all responsibility and liability for the conduct of its Affiliates. Without limiting any other provision of this Agreement, Publisher shall fully and completely indemnify, defend, and hold harmless Company for all damages arising from an Affiliate’s breach of this Agreement, the Compliance Guidelines, any IO, or violation of any applicable law.
   3. Advertising Copy. Publisher represents and warrants that it will only use the approved advertising creative (“Creative”) provided by Company for each Campaign and will make no modifications to the same. To the extent that Publisher desires to modify any Creative or develop original advertising copy, media, or other creative in connection with any Advertising Services, it will submit said modification or creative to Company for review and approval prior to its use or distribution.
   4. Call Center Services. Publisher shall ensure that any call centers that it operates or causes to operate in connection with the Advertising Services will comply in all material respects with all applicable laws, including, without limitation, the Federal Trade Commission Act (the “FTC Act”), the Telemarketing and Consumer Fraud and Abuse Prevention Act (the “TCPA”), and all state and federal statutes regulating the initiation and/or content of telemarketing sales calls including the Federal Communications Commission (the “FCC Regulations”) and the rules and regulations of any state regulatory agency having jurisdiction, including but not limited to, the Illinois Restricted Call Registry Act and similar statutes.
   5. Consent Records. Special laws apply to advertisements sent by email, text message, or phone call, which require the recipient’s express consent before the advertisement is sent. In order to use email, text, or phone calls as part of its Advertising Services, Publisher must have the consent of each recipient and shall maintain records evidencing such consent (“Consent Records”) that comply with the applicable laws, including without limitation, the CAN-SPAM Act of 2003 (“CAN-SPAM”), California’s Anti-Spam Act, Cal. Bus. & Prof. Code §§ 17529 et seq. (“California’s Anti-Spam Act”), the Canadian Anti-Spam Law (“CASL”), and the Telephone Consumer Protection Act (the “TCPA”). Publisher shall provide such Consent Records to Company within two (2) business days of any request.
   6. Suppression Lists. Publisher shall maintain a list of opt-outs and/or unsubscribe requests received by Publisher (the “Suppression List”) and shall regularly scrub its email database and telephone number list against such Suppression List as necessary to comply with all applicable laws, including without limitation, CAN-SPAM, California’s Anti-Spam Act, CASL, and the TCPA. If Publisher conducts marketing by text or phone calls, then in addition to the foregoing, Publisher shall, at least once ever thirty-one (31) days, scrub its telephone number list against the National Do Not Call Registry, available at telemarketing.donotcall.gov.
   7. No Misuse of Suppression List. Should Company or its Advertisers supply a Suppression List to Publisher, Publisher shall not market or use the Suppression List either directly or indirectly for business purposes whatsoever outside the terms of this Agreement and shall consider Suppression Lists as Confidential Information of Company. This Section shall survive the termination of this Agreement.
   8. Influencer Compliance. Publisher agrees to comply with the FTC’s Endorsement Guides, currently located at https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking, with respect to any endorsements made as part of its Advertising Services hereunder, including, without limitation, properly disclosing that Publisher receives consideration for reviewing, promoting and/or recommending a product or service or engaging in any type of influence marketing.
   9. Marketing Materials; Publicity. All media releases by Publisher or its agents relating to this Agreement, or any Campaign shall be subject to the prior written approval of Company.
   10. Compliance with Laws. Publisher will comply with all applicable laws relating to the Advertising Services and the handling of User Data that is derived from the Advertising Services including, without limitation, CAN-SPAM, California’s Anti-Spam Act, CASL, the TCPA, Section 5 of the FTC Act and all related guidelines issued by the FTC, and state consumer-rights legislation. If Publisher is located outside of the United States and/or the Advertising Services are directed to or likely to reach persons located outside the United States, then Publisher represents and warrants that it understands and will comply with all applicable foreign laws governing advertising and the handling of User Data. To be clear, Publisher is responsible for complying with the laws in both the jurisdiction where Publisher is located and the jurisdiction(s) where the Advertising Services take place.
4. Intellectual Property
   1. Company’s Intellectual Property. Company or its licensors shall retain all right, title and interest in all software, programs, advertising copy, images, content, media, trademarks, trade names, service marks, service names, copyright works, and Internet domain names that it owns or develops during the term of this Agreement (collectively, “Company IP“).
   2. Non-Circumvention. Company maintains proprietary relationships with clients who may be referenced in the Creative, IOs or other campaign-specific terms or communications, and the identity of those clients, and information concerning their users is a proprietary trade secret. During the term of this Agreement and for a six (6) month period following termination or expiration thereof, Publisher agrees not to circumvent Company’s relationship with such clients, or otherwise knowingly solicit or induce, directly or indirectly, any Company client that is known by Publisher to participate in Company’s network and/or otherwise have a business relationship with Company for purposes of obtaining advertising, marketing or promotional opportunities or services similar to those offered by Company. In the event of a breach of this covenant, without limiting Company’s remedies, Publisher shall pay to Company any actual damages incurred by Company. This Section will not apply to any entity with which Publisher can prove Publisher had a direct or indirect relationship that preceded this Agreement.
   3. Publisher Intellectual Property. Publisher or its licensors shall retain all right, title and interest in all of its software, programs, websites, information trademarks, trade names, service marks, copyright works, and internet domain names that it owns or develops during the term of this Agreement, exclusive of any Company IP.
5. Payment Terms
   1. Unless otherwise specified in a governing IO, invoicing will be on a per month basis and payment will be made to Publisher thirty (30) days after Company’s receipt of an invoice from Publisher.
   2. Both Parties shall be responsible for tracking the specific payable actions designated in the applicable IO (“User Actions”), for example, leads (CPL), installs (CPI), clicks (CPC), impressions (CPM), or other actions (CPA). Payment to Publisher shall be based on the lower of the number of User Actions tracked by either Company or Publisher for the payment period. After the close of the payment period, Publisher shall submit an invoice to Company identifying the number of User Actions and the Party whose tracking upon which said number is based.
   3. If Company disputes the validity of any User Action (including, without limitation, a dispute related to Fraud as determined by Company), then Publisher shall provide all evidence in support of the User Action to Company within seven (7) days of receipt of notice of the dispute. Company shall, in its sole discretion, make a good faith determination based upon the data available to Company and the data provided by Publisher as to the validity of the alleged invalid User Actions, and Company’s determination shall be final and binding.
6. Representations; Spam Compliance
   1. Mutual. Each Party represents and warrants that: (i) it has the full corporate right, power and authority to enter into and perform under the Agreement; (ii) the execution of the Agreement and performance of its obligations hereunder will not violate any agreement to which it is a party or by which it is otherwise bound; (iii) when executed and delivered, the Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable against each Party in accordance with its terms; and (iv) its advertising or marketing activities will neither infringe on any copyright, trademark, patent or any other third-party right, nor knowingly violate any federal, state or local law, rule or regulation.
   2. Advertising and Spam Compliance. Publisher represents and warrants that it will comply with all spam laws, regulations, and industry standards, including without limitation the CAN-SPAM Act of 2003, the Federal Trade Commission Act, and state spam laws, including Cal. Bus. & Prof. Code § 17529.5. In particular, regardless of whether Creative is provided by Company, Publisher shall not transmit any email as part the Advertising Services: (i) with materially false or misleading header information; (ii) with a “from” line that is false or misleading or does not actually identify the Publisher; (iii) with a “subject” line that is false or misleading; (iv) without a functioning return email or internet address conspicuously displayed that will function for thirty (30) days after an email is sent; (v) without appropriate “unsubscribe” or “opt-out” information for which Publisher shall maintain records and comply; (vi) without clear and conspicuous identification that an email contains commercial content or sexually explicit material, if applicable; (vii) without a valid physical postal address of Publisher; or (vii) with any content that infringes on any third-party rights or violates any applicable law or regulation. Publisher further agrees to not: mislead consumers, promote goods or services not offered by the applicable Advertiser(s), use false claims or endorsements, engage in fraud, use fictitious names or information, fail to use appropriate disclosures, or use third-party content, including intellectual property, without requisite consent. Publisher represents and warrants that each Affiliate has agreed to this Paragraph and that Publisher assumes liability for any violations of same. Furthermore, reliance on the fact that Company may provide Creative shall not diminish Publisher’s obligations under this Paragraph.
7. Disclaimers; Limitation of Liability
   1. No Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY, ON BEHALF OF ITSELF AND ITS AGENTS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, PERFORMANCE, AND ANY OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. COMPANY DOES NOT WARRANT THAT THE CAMPAIGNS OR NETWORK WILL MEET PUBLISHER’S REQUIREMENTS OR THAT THE OPERATION OF THE CAMPAIGNS OR NETWORK WILL BE UNINTERRUPTED OR ERROR-FREE.
   2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY AND ITS AGENTS HAVE LIMITED LIABILITY AND SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THE DAMAGES OR ANY NOTICE, ARISING OUT OF OR IN CONNECTION WITH PUBLISHER’S PARTICIPATION IN THE CAMPAIGNS, USE OF THE NETWORK, OR THIS AGREEMENT, REGARDLESS OF LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF COMPANY AND ITS AGENTS FOR ALL CLAIMS SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100).
8. Indemnification
   1. Publisher. Publisher agrees to indemnify, defend, and hold harmless Company, its subsidiaries, parents, partners, affiliates, agents, contractors, technology licensors, shareholders, officers, directors, representatives, employees, and Advertisers (collectively, “Company Parties”) from and against any and all claims, losses, costs, actions, lawsuits, judgments, demands, injuries, expenses, damages, reasonable attorney’s fees and costs (collectively, “Claim(s)”) arising out of or relating to any: (i) breach of the Agreement by Publisher; (ii) any allegation that Publisher violated any applicable law or regulation; and (iii) any allegation relating to Campaigns, Creative, Advertising Services, or Publisher’s conduct.
   2. Advertisers and Company. If a Claim arises out of or relates to Advertisers’ websites, privacy policy, goods, services, or conduct (“Ad Claims”), Publisher agrees to only seek defense and indemnity from the affiliated Advertiser; Publisher agrees to not seek defense and indemnity from Company, who shall not be liable for same. Company agrees to cooperate and provide reasonable assistance to Publisher. Without limiting the foregoing, Company agrees to indemnify, defend, and hold harmless Publisher, its subsidiaries, parents, partners, affiliates, agents, contractors, shareholders, officers, directors, representatives, and employees from and against any Claim relating to Company’s willful violation of any intellectual property rights in breach of this Agreement.
   3. Procedure. Any Party seeking indemnification shall provide prompt notice of any Claim and reasonable cooperation. Any indemnifying party shall not agree to any resolution of any Claim that adversely affects the indemnified party’s rights or interests without the prior written consent of the indemnified party, which shall not be unreasonably withheld.
9. Confidentiality
   1. Confidential Information. “Confidential Information” for purposes of this Agreement shall mean all confidential and proprietary documentation and technical and business information and intellectual property provided under this Agreement whether written or oral, in whatever form recorded, Confidential Information shall not include information that (i) the disclosing party agrees in writing is non-longer Confidential Information; (ii) is or falls into the public domain through no wrongful act of the receiving party; (iii) is previously known to the receiving party; (iv) is independently developed by or for the receiving party; (v) is lawfully received free of restriction from another source having the right to so furnish such information; or (vi) is the subject of a subpoena or other legal or administrative demand for disclosure or is disclosed in response to a valid order of a court or other governmental body, but only to the extent of and for the purposes of such demand or order; provided, however, that such receiving party shall first notify the disclosing party in writing of the demand or order and permit and cooperate with the disclosing party in seeking an appropriate protective order (or an equivalent mechanism for protecting such Confidential Information in the relevant jurisdictions).
   2. Restrictions on Use. Confidential Information shall remain the property of the disclosing party. The party receiving confidential information shall (i) use the Confidential Information only for the purpose of fulfilling the terms of this Agreement or in the exercise of the rights it may receive expressly under the provisions of this Agreement; (ii) keep confidential and restrict disclosure of the Confidential Information solely to employees, legal counsel or other representatives that need to know to facilitate the performance of this Agreement and not disclose the Confidential Information to any other third parties; (iii) protect the Confidential Information with at least the same degree of care as is used with its own proprietary information, but no less than a reasonable degree of care; and (iv) refrain from copying or reproducing such Confidential Information, in whole or part, except for use as expressly authorized in this Agreement.
   3. Each party acknowledges that use of the Confidential Information other than as permitted under this Agreement, may cause irreparable harm for which there may be no adequate remedy at law and would entitle the other party to injunctive relief as well as any other remedies available, including monetary damages.
   4. The requirements of this Section survive the termination of this Agreement.
10. Term and Termination
    1. This Agreement shall commence on the Effective Date and shall remain in full force and effect until terminated as set forth below.
    2. Either Party shall have the right to terminate this Agreement immediately upon notice to the other Party if the other Party shall (i) fail to observe or perform any material term, condition or covenant of this Agreement, including those terms noted above in Section 5(c) “Payment Terms“, or (ii) becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver, conservator or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors. In addition, either party may terminate this Agreement at any time upon 5 (five) days prior written notice for any reason or no reason at all.
    3. Effect of Termination. Upon termination of this Agreement each Party shall return to the other any confidential or proprietary information belonging to the other Party. The termination of this Agreement, whether by default or otherwise, will not terminate Company’s payment obligations for Advertising Services performed under this Agreement, including without limitation payment obligations arising out of a continued use of the lead that generates income. Sections 4 and 7-13 shall also survive this Agreement.
11. Independent Contractors
    1. Relationship of the Parties. The relationship of the Parties to this Agreement is that of independent contractors. Nothing contained in this Agreement will be construed to create or imply a joint venture, partnership, employee or principal-agent relationship between the Parties, their employees, or their representatives.
    2. No Agency. Neither Party will represent that they are the agent or representative of the other. Except as specifically agreed in connection with an IO, neither Party by virtue of this Agreement will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party.
    3. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished.
12. Dispute Resolution
    1. Choice of Law. This Agreement, together with any Insertion Order, shall be treated as though this Agreement were executed and performed in Hong Kong and shall be governed and construed in accordance with the laws of the Hong Kong without regard to conflict of law principles.
    2. Requirement of Arbitration. Publisher agrees that any dispute, of any nature whatsoever, between Publisher and Company arising out of or relating to this Agreement, including Insertion Order(s), and any Campaign-specific terms and conditions, shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Center (“HKIAC”) under the UNCITRAL Arbitration Rules in force when the Notice of Arbitration is submitted. The place of arbitration shall be Hong Kong. The arbitration proceedings shall be conducted in English. The Parties agree that the arbitration will take place over Zoom unless the Parties mutually agree to participate in person, in which case the arbitration will take place in Hong Kong.
    3. No Joinder of Claims. The Parties further agree that neither Party will join any legal claim with the claim of any other person or entity in a lawsuit, arbitration or other proceeding, that no legal claim will be resolved on a class-wide basis, and that neither Party will assert a claim in a representative capacity on behalf of anyone else. You hereby acknowledge that without this provision, you would have the right to sue in court with a jury trial or participate in a class action.
    4. Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude Publisher or Company from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude either Publisher or Company from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN HONG KONG; THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.
13. Miscellaneous
    1. Entire Agreement. This Agreement, as modified by any IOs, constitutes the entire agreement among the Parties and supersedes any prior oral understandings, agreements or representations by or among the Parties with respect to the subject matter hereof. This Agreement may only be modified or amended by a writing executed by the Parties.
    2. Neither Party may assign its rights or delegate its responsibilities hereunder without the prior written consent of the other Party, which will not be unreasonably withheld, delayed, or conditioned; provided however, that this Agreement may be assigned by operation of law or otherwise to any successor to a Party whether by change in control of stock, merger, or sale of substantially all of the assets of the Party.
    3. Force Majeure. Neither Party hereto shall be liable to the other for any delay in, or failure of, performance of any covenant contained herein, to the extent that such delay or failure results from fires, explosions, actions of the elements, strikes or other labor disputes, restrictions or restraints imposed by law, rules or regulations of a public authority, acts of military authorities, war riots, civil disturbances, interruptions, or delays of utilities or telephone service, interruption of transportation facilities, and any other cause which is beyond the reasonable control of the Party affected, and which by the exercise of reasonable diligence, said party is unable to prevent.
    4. Neither the waiver by any Party hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure of any Party hereto, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right, remedy or privilege hereunder shall thereafter be construed as a waiver of any such provisions, rights, remedies, or privileges hereunder. Any of the terms, covenants, representations, warranties, or conditions hereof may be waived only by a written instrument executed by the Party waiving compliance.
    5. All notices, requests, demands and other communications provided for in this Agreement shall be in writing and delivered, confirmed facsimile or email, personal delivery or delivery by overnight carrier at the addresses provided by the respective Parties hereto. Notices shall be deemed given upon receipt.
    6. Construction. Each Party had the opportunity to seek the advice of independent legal counsel and has read and understood all the terms and conditions of this Agreement. This Agreement shall not be construed against either Party by reason of its drafting.
    7. Severability. If an arbitrator or court of competent jurisdiction finds any provision of this Agreement unenforceable, that provision will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of the Agreement will continue in full force and effect.
    8. This Agreement may be executed in multiple counterparts and transmitted by facsimile or by electronic mail in “portable document format” (“PDF”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a Party’s signature. Each such counterpart and facsimile or PDF signature shall constitute an original and all of which together shall constitute one and the same original.

EXHIBIT A

PUBLISHER COMPLIANCE GUIDELINES

These Compliance Guidelines (“CG”) are intended to help the Publisher understand the types of websites and advertising conduct that Company believes to be appropriate or inappropriate. Please keep in mind that this CG is intended as a guideline, and not as an exhaustive list of content and conduct that Company finds appropriate or inappropriate.

Capitalized terms used, but not defined, herein have the respective meanings ascribed to them in the Master Publisher Agreement. In the event of a conflict between the terms and provisions of any other agreement and this CG, the terms and provisions of, first, the CG and, second, the Master Publisher Agreement shall control. All references to “Publisher” in this CG shall mean and include Publisher and all of its Affiliates.

COMPANY RESERVES THE RIGHT TO CHANGE THE CG AT ANY TIME UPON NOTICE TO YOU, TO BE GIVEN BY THE POSTING OF A NEW VERSION OR A CHANGE NOTICE ON THE COMPANY WEBSITE.

1. LEGAL COMPLIANCE

Publisher shall not violate any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, CAN-SPAM, the California Anti-Spam Act, CASL, the TCPA, the FTC Act, all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the UK Data Protection Act of 2018, and the GDPR.

2. CAMPAIGN-SPECIFIC TERMS & CONDITIONS; COMPANY CREATIVE

Campaigns may have campaign-specific terms and conditions. Publisher shall comply with any and all campaign-specific terms & conditions at all times.

Publisher shall only use Company approved artwork, text, audio, video (hereinafter, “Creative”). Publisher shall not alter, cut, crop, modify, or otherwise change any aspect of any Creative, without Company’s express written approval.

3. WEBSITE REQUIREMENTS

Any and all websites that Publisher uses to promote Campaigns must:

• Be fully functional at all levels, with no “under construction” sites or sections;
• Be content-based and not simply a “parked” page or list of links or advertisements;
• Not generate pop-up advertisements, including without limitation “pop-overs” and “pop-unders,” when leaving the website;
• Close when instructed, e. when a user seeks to close or otherwise leave the, the website must close down and no other behavior should result;
• Not “mouse trap,” e. whereby the website does not permit the use of the browser back-button and thereby traps the user on the website, or whereby the website presents other unexpected behavior, such as re-directing to another advertisement or landing page; and
• Not contain automatic audio that plays without user instigation.

4. PROHIBITED CONTENT AND CONDUCT

Prohibited content and conduct includes, without limitation, content and/or conduct that:

• Infringes the rights, including without limitation the copyright, patent, trademark, trade secret, or other proprietary rights, of any third party, or violates any agreement between Publisher and a current or former employer concerning the intellectual property Publisher creates or created during Publisher’s employment;
• Is false, misleading, fraudulent, or deceptive;
• Is libelous or defamatory, or violates the privacy or publicity rights of any third party;
• Contains, facilitates, or promotes “spam” or other advertising or marketing content that violates applicable laws, regulations, or industry standards;
• Consists of or contains viruses, Trojan horses, worms, malicious code, or other harmful or destructive content;
• Is “adult” in nature, obscene, lewd, lascivious, filthy, or pornographic, that may constitute child pornography, or that may solicit personal information from or exploit in a sexual or violent manner anyone under the age of 18;
• Depicts excessive violence, contains comments or images that are offensive, abusive, threatening, harassing, or menacing, or that incites, encourages or threatens physical harm against another;
• Promotes or glorifies racial or religious intolerance, uses hate and/or racist terms, or signifies hate towards any person or group of people;
• Advocates the violent overthrow of the government of the United States or other conduct that could constitute fraud or other criminal offense, gives rise to civil liability, or otherwise violates any applicable local, state, national, or foreign law or regulation;
• Glamorizes the use of hard-core illegal substances and drugs;
• Advertises: (i) tobacco products, (ii) ammunition, firearms, paintball guns, bb guns, or weapons of any kind, (iii) gambling, including without limitation, any online casino, sports books, bingo, or poker website, (iv) get rich quick or other money making opportunities that offer compensation or financial reward in exchange for little or no investment, (v) adult friend finders or dating sites with a sexual emphasis, (vi) adult toys, videos or other adult products, (vii) spy cams or other illegal surveillance products, and (viii) web-based, non-accredited colleges that offer degrees;
• Promotes pyramid schemes or chain letters;
• Promotes software pirating (e.g. Warez), phreaking, or hacking;
• Promotes or exploits religious, political, or other inflammatory issues for commercial use;
• Depicts a health condition in a derogatory or inflammatory way or misrepresents a health condition in any way;
• Offers incentives (g. cash, points, prizes, contest entries, etc.) to viewers for clicking on the advertisement, for submitting personally identifiable information, or for performing any other tasks;
• Harvests or otherwise collects information about Company’s users;
• Uses or attempts to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Company website for any use;
• Frames the Company website;
• Accesses protected content or data, or accesses or logs onto a secure server or account;
• Attempts to probe, scan, or test the vulnerability of the Company website, or any other system or network, or breaches security or authentication measures without proper authorization;
• Interferes or attempts to interfere with the use of the Company website by any other user, host, or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”;
• Uses the Company website to send unsolicited e-mail, including without limitation promotions or advertisements for products or services;
• Attempts to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Company in providing its website; and
• Includes material that violates applicable laws and regulations, including but not limited to CAN-SPAM, California’s Anti-Spam law, CASL, the FTC Act, any FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the UK Data Protection Act of 2018, the GDPR, and the Utah and Michigan “Child Protection Registry Laws” as discussed more fully herein.

5. PRIVACY; COMPLIANCE WITH U.S. AND INTERNATIONAL LAW, INCLUDING HIPAA

Publisher shall comply with all applicable privacy laws. Publisher further agrees to post conspicuously on each of Publisher’s websites a privacy policy, linked, at a minimum, from the website’s home page, that: (a) discloses Publisher’s privacy practices, including Publisher’s use of a third party for Publisher’s ad serving activities, (b) identifies the collection and use of information gathered in connection with both ad serving activities and delivery of the Publisher’s content, and (c) provides the user with instructions on how to opt-out out from such collection.

Publisher shall not, as a method of screening consumers for a campaign or otherwise, solicit or collect any personal health information that would be subject to the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), regardless of whether or not Publisher believes it falls under the purview of HIPAA.

If Publisher is located in the United Kingdom or European Union, or uses any related domain (e.g., a “.uk.co” domain) to promote any Campaign, or work on a Campaign directed at persons located in the United Kingdom or another member state of the European Union, in addition to the foregoing, Publisher shall comply with the UK Data Protection Act of 2018, the GDPR and all EU data protection and privacy directives and regulations, as amended from time to time. Publisher further agrees to conspicuously disclose the use of “cookies” on any and all websites used to promote the Campaign sufficient to permit the user to make an informed decision and give overt consent to Publisher’s collection and use of any personal data through cookies, such as by clicking a button to confirm their consent.

6. FALSE AND MISLEADING ADVERTISING; FTC COMPLIANCE

In connection with Publisher’s promotion of Campaigns, Publisher shall not at any time:

• Mislead consumers with false or misleading language or claims;
• Promote content, products, or services not actually offered by Company;
• Use false claims, testimonials, endorsements (including celebrity endorsements), or any similar content;
• Use a testimonial that conveys an atypical or uncommon result without disclosing clearly and conspicuously, and in close proximity to the testimonial, the typical and representative performance of the product or service;
• Use “fake” blogs (“flogs”), news sites or any similar content without disclosing clearly and conspicuously that such content is an advertisement;
• Use photos, quotes, logos/seals, copyrighted material, or trademarks of any third-party, including without limitation, celebrities, or business entities, without the express written consent of such third-party; or
• Advertise a discount, trial, or free offer without clearly and conspicuously displaying the terms of the offer, future costs, recurring billing, etc., if any.

Further, if Publisher publicly endorses any product or service that is the subject of a Campaign, Publisher shall disclose clearly and conspicuously, and in close proximity to the endorsement, that Publisher receives compensation in the form of affiliate commissions in exchange for such endorsement.

7. EMAIL PRACTICES; CAN-SPAM AND CALIFORNIA ANTI-SPAM ACT COMPLIANCE

If Publisher uses email to market Campaigns, Publisher shall maintain accurate and current Consent Records as defined above.

If Publisher uses email to market Campaigns, Publisher shall not transmit any email:

• With materially false or misleading header information;
• With a “from” line that is materially false or misleading and does not accurately identify the person sending the email;
• With a “subject” line that is misleading, false, or misrepresentative or is likely to mislead the recipient about the content of the email;
• With an apparent “from” domain that is materially false or misleading, or does not belong to Publisher (e.g., @Amazon.com, @Lowes.com);
• Without a functioning return email or Internet address, clearly and conspicuously displayed, that functions for thirty (30) days after the email is sent, that a recipient can use to submit a reply email requesting not to receive future commercial emails or Internet communications from the sender;
• Without a clear and conspicuous identification that the email is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid physical postal address of the Publisher; or
• With any content that infringes or violates any applicable law or regulation or any intellectual, proprietary or privacy rights, or is misrepresentative, defamatory, inflammatory, offensive, or otherwise objectionable.

Further, Publisher shall not transmit any email:

• If Publisher knows, or has reason to know, that the email address was obtained using an automated means, including without limitation, harvesting software, such as harvesting bots or harvesters, dictionary attacks, etc., or via an Internet service, which indicated that at the time the address was obtained, that the Publisher was not to give or sell the address to others; or
• To any individual that has requested not to receive any emails more than three (3) days after receipt of such request, provided that the email falls within the scope of the request.

Further, Publisher agrees to do at least one of the following:

• Identify itself in the “from” line by using a domain name that includes Publisher’s name; or
• Ensure that Publisher’s name and contact information appear in the publicly-accessible WHOIS record for any domain used in the “from” line, and that no such domain is registered using a privacy-protection service.

8. MOBILE MARKETING PRACTICES; TCPA COMPLIANCE

If Publisher uses text messages (“texts”) to market Campaigns, Publisher shall not transmit, or cause to be transmitted, any texts, without the prior express consent of the receiving party to receive text messages specifically from the sender, using “blast texting” or any other automated system to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the receiving party is charged for the text.

Further, Publisher shall not transmit, or cause to be transmitted, any texts outside of the hours established by federal time-of-day requirements: texts shall be sent between 8 a.m. and 9 p.m. local time of the recipient, only. Publisher shall not transmit, or cause to be transmitted, any texts to any phone number on relevant suppression lists provide by Company, populated either by specific requests for opt-outs or the national Do Not Call registry. Publisher shall record any opt-out request Publisher receive, transmit it to Company, scrub the requester’s contact information from Publisher’s list, and refrain from sending any text to the individual’s phone number, as detailed in Section 3 of the Publisher Agreement above.

9. FRAUDULENT ACTIVITY

The following activity, without limitation, is considered fraudulent and is strictly prohibited:

• The use of false data, credit/debit card numbers, or other financial information on any signup form, contract, online application, or registration;
• The use of unauthorized data, credit/debit card numbers, or other financial information in the name of third parties on any signup form, contract, online application, or registration;
• The manipulation of tracking pixels, codes, links, or other tracking information to stimulate leads or inflate commissions;
• The use of “cookie stuffing,” “cookie dropping,” “forced clicks,” or “cookie sprinkling;”
• The artificial inflation of leads or transactions via any device, program, robot, computer script, or other automated method;
• The generation of clicks that do not map to a conscious action by an individual, including but not limited to: (i) repeat manual clicks; (ii) the use of robots or other automatic means to generate clicks; and (iii) faking tracking information to stimulate links.

If Publisher fraudulently add leads or clicks, or inflate leads or clicks through fraudulent traffic generation, whether specifically proscribed above or otherwise, and as determined by Company in its sole discretion, Publisher will forfeit Publisher’s entire commissions for all Campaigns and Publisher’s affiliate account will be terminated.

10. TERMINATION; LEGAL ENFORCEMENT

Without limiting any of Company’s other remedies, Company reserves the right, in Company’s sole discretion, to terminate any Publisher who violates the CG. Any violation of the CG may subject the offending party to civil and/or criminal liability. Company intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of the CG or of any applicable laws.