Diablo Media LLC - Publisher Terms and Conditions

DIABLO MEDIA AFFILIATE AGREEMENT

Last Updated April 1, 2021

This Diablo Media Affiliate Agreement, together with all exhibits hereto and any Insertion Order executed hereunder, (collectively, the “Agreement”) constitutes the entire and exclusive agreement between Diablo Media, LLC (hereinafter, the “Company”) and you or your company (in either case, hereinafter, the “Affiliate”). Affiliate and Company are each individually referred to herein as “Party” and collectively as the “Parties.”

By registering as an Affiliate and clicking the “I accept” or “Submit” button, Affiliate hereby agrees that Affiliate enters into and agrees to be bound by the terms and conditions of this Agreement.

1. SELECT DEFINITIONS.

1.1. An “Action” means a specified action identified in an Insertion Order or Campaign-Specific Terms, initiated through Affiliate’s advertising efforts and completed by a consumer, whereby a Fee is generated—such as clicks, click-throughs, sales, registrations, installs, downloads, impressions, and leads.

1.2. An “Advertiser” means a third-party client of Company, whose products and services are promoted through the Affiliate Program.

1.3. An “Affiliate ID” means the unique identification number and/or tracking link assigned to Affiliate for use in redirecting consumers to the Advertiser’s website, app, products, or services to ensure Affiliate is credited with any Action completed by the consumer.

1.4. The “Affiliate Program” means, collectively, the combined paid advertising opportunities, the web-based application, reporting, access to data, the Tracking Platform, and content provided by Company to Affiliate and others.

1.5. A “Campaign” means an advertising opportunity made available to Affiliate by Company for a specific Advertiser or offer, which is limited in time and/or scope.

1.6. “Campaign-Specific Terms” means rules and requirements that govern a particular Campaign in addition to those set forth in this Agreement. Campaign-Specific Terms may be communicated to Affiliate through the Site or an Insertion Order.

1.7. A “Fee” means the Affiliate commission generated upon the occurrence of a qualified Action. For example, if a particular Campaign has a $30 CPA for all sales of the Advertiser’s products through the Affiliate ID, then the Action is the sale and the associated Fee is $30.

1.8. An “Insertion Order” means a separate writing executed by the Parties setting forth Campaign- Specific Terms and the associated Fee.

1.9. The “Tracking Platform” means Company’s proprietary software that tracks Actions.

2. PARTICIPATION IN THE AFFILIATE PROGRAM.

2.1. Approval. Affiliate’s participation in the Affiliate Program is subject to the terms and conditions of this Agreement and Company’s express approval. Upon Affiliate’s receipt of an acceptance email from Company, Affiliate is entitled to participate in the Affiliate Program. Company’s approval of Affiliate’s participation may be withheld or terminated at any point, at Company’s sole discretion, regardless of initial acceptance.

2.2. License. During the term of this Agreement, Company grants to Affiliate a revocable, non- transferable, non-exclusive limited license to use the Affiliate Program, the Tracking Platform, the Company Site and any data, reports, information, or analyses arising out of such use (the “Program Data”) solely for the purposes set forth in this Agreement.

2.3. Third-Party Publishers. Affiliate hereby acknowledges and agrees that to the extent it represents or acts on the behalf of third-party affiliates/publishers or websites (“Third-Party Publishers”), Affiliate assumes all liability for such Third-Party Publishers and will ensure that such Third-Party Publishers comply with the terms of this Agreement, any Campaign-Specific Terms, and all applicable laws and regulations. Without limiting any other provision of this Agreement, Affiliate shall fully and completely indemnify, defend, and hold harmless Company for all damages arising from a Third-Party Publisher's breach of any obligations or warranties set forth in Section 10 herein. Without limiting any other provision of this Agreement, Affiliate represents and warrants that it has the ability to terminate any Third-Party Publisher's rights to the Affiliate Program or the Site immediately. For the purposes of this Agreement, unless expressly stated otherwise, the term "Affiliate" means the Affiliate and any Third-Party Publishers.

3. AFFILIATE’S MARKETING METHODS.

3.1. Incorporation of Exhibits. The Affiliate Acceptable Use Policy (attached hereto as Exhibit A), the Telemarketing/SMS Advertising Policy (attached hereto as Exhibit B) and the Email Advertising Policy (attached hereto as Exhibit C) are incorporated herein by reference and Affiliate agrees to comply with the same in performing its obligations under this Agreement. Affiliate understands and acknowledges that Affiliate and all Third-Party Publishers are expressly prohibited from advertising by Telemarketing (including all variations thereof, such as ringless voicemail), SMS (text message), and email unless Affiliate and its Third- Party Publishers have been expressly authorized to do so. Such authorization may be expressly stated in an Insertion Order or the Campaign-Specific Terms.

3.2. Incorporation of Campaign-Specific Terms. All Insertion Orders between the Parties and any other document or media containing Campaign-Specific Terms are incorporated into this Agreement by reference. Affiliate agrees to comply with all Campaign-Specific Terms. In the event of a conflict between the terms of this Agreement and any Insertion Order or other Campaign-Specific Terms, the Insertion order or Campaign-Specific Terms shall govern as to the underlying Campaign and this Agreement shall govern as to all other matters. Company reserves the right to, in its sole discretion, approve or deny Affiliate to work on a specific Campaign without affecting any other aspect of this Agreement.

3.3. Creative. Company may make available to Affiliate graphic or textual material for display and use on Affiliate’s websites and other advertisements (collectively, “Creative”) with respect to a specific Campaign. Affiliate may not use any other graphic, textual, audio, artwork, or other materials other than Creative either supplied by Company or supplied by Affiliate but approved of in advance by Company, to promote the Campaign. Affiliate acknowledges that any material alterations made by Affiliate to Creative that is not approved by Company could result in false advertising that Company cannot endorse with payment. If Company determines that Creative has been altered without Company’s approval, Company may suspend payment owed to Affiliate while Company fully investigates the matter.

4. PAYMENT AND TRACKING.

4.1. Fees. Affiliate will earn Fees on qualified Actions as set forth in an Insertion Order or other Campaign-Specific Terms. Company may modify or change the Fees at any time upon notice to Affiliate, including by email, and at Company’s sole discretion. Affiliate’s continued participation in the Affiliate Program after a change to the Fees constitutes acceptance of the revised Fees.

4.2. Payment Terms. Unless otherwise stated in an Insertion Order or other Campaign-specific terms, all payments due under this Agreement shall be made monthly on a Net-30 basis, meaning Fees will be paid within thirty (30) days following the close of the calendar month in which they accrued, less any refunds or chargebacks. If the scheduled payment day falls on a weekend or bank holiday, then payment shall be made on the next business day. Payments will be initiated electronically and/or mailed on the payment date, and Affiliate understands and agrees that it may take additional time to reach Affiliate or clear Affiliate’s payment account. Company shall not remit payment for any Actions that occur after Affiliate has been suspended or terminated. Further, Company shall not be required to pay Affiliate for any Fees for which Company, itself, has not yet been paid by the Advertiser. All Fees will be paid in US dollars ($USD). Company is not liable for any fees incurred by Affiliate from Affiliate’s financial institution; Affiliate shall be solely responsible for such fees. Affiliate understands and agrees that it is Affiliate’s sole responsibility to notify Company of any changes to Affiliate’s payment account.

4.3. Affiliate ID. It is Affiliate’s sole responsibility to ensure that all Actions occur through the Affiliate ID so that Company may track Affiliate’s Actions and Fees with accuracy. Where used in technical form, such as an Affiliate link, Affiliate agrees to monitor its Affiliate ID to ensure its proper functioning. Affiliate IDs may not be applied to Actions retroactively and Company shall not be responsible for payment on any Actions generated outside of the Affiliate ID.

4.4. Tracking and Disputes. Company shall be exclusively responsible for tracking all Fees due to Affiliate, which shall be visible to Affiliate through the Tracking Platform. In the event that Affiliate reasonably believes Company’s tracking for a given calendar month is inaccurate, no later than seven (7) days after the close of such month, Affiliate shall provide Company with all evidence supporting the alleged error, and the Parties shall work together in good faith to resolve the matter to their mutual satisfaction. In the event the Parties are unable to agree, then Company’s reasonable decision shall govern.

5. FRAUD; SUSPENSION OF AFFILIATE.

5.1. Fraud. Company has a zero-tolerance policy with respect to Affiliate fraud. Without limiting and other provision of this Agreement, Company reserves the right, in Company's sole and absolute discretion to terminate this Agreement and/or Affiliate's account, at any time without liability to Company, should Company determine, in its sole and absolute discretion, that Affiliate engages in fraud, deception, dishonesty, unlawful acts, or any other misconduct that causes harm to Company or its Advertisers (collectively, “Fraud”).

5.2. Forfeiture. If Company determines that Affiliate has engaged in Fraud, Affiliate will forfeit its entire Fee for all Campaigns and Affiliate's account will be terminated immediately.

5.3. By Third-Party Publishers. Upon notice by Company to Affiliate that a Third-Party Publisher is engaging, or has engaged, in any activity prohibited by this Agreement, including, but not limited to, Fraud, Affiliate shall immediately terminate its relationship with such Third-Party Publisher, as it pertains to the Third-Party Publisher's participation in the Affiliate Program. If Affiliate is notified that a Third-Party Publisher is engaging, or has engaged, in prohibited activities, and Affiliate fails to terminate its relationship with such Third-Party Publisher within three (3) days of notice by Company, Company reserves the right to immediately terminate this Agreement. Further, in the event that Company determines, in its sole discretion, that a Third-Party Publisher is engaging, or has engaged, in prohibited activities, including Fraud, company shall recalculate and withhold the Affiliate's Fees accordingly. For clarity, Company reserves the right to withhold or recalculate amounts generated by Fraud and other prohibited activity of Third-Party Publishers, regardless of whether Affiliate participated in or knew about the prohibited activity.

5.4. Litigation or Government Investigation. To the extent that Affiliate becomes aware of any litigation or investigation concerning Affiliate’s marketing practices or procedures, irrespective of whether such litigation or investigation relates to Affiliate's relationship with Company, Affiliate shall immediately notify Company of such litigation or investigation.

6. CHANGES TO AGREEMENT. Company may modify any of the terms and conditions contained in this Agreement, at any time and at its sole and absolute discretion, upon posting such changes on the Company Site or providing written notice to Affiliate, including by email. Affiliate's continued participation in the Affiliate Program after any such modification thereof shall constitute Affiliate’s explicit consent to such modification.

7. PROPRIETARY RIGHTS. Affiliate agrees that it does not have, nor will it claim, any right, title, or interest in the Affiliate Program, the Tracking Platform, the Program Data, Creative, the Company Site or any underlying technology, software, applications, data, methods of doing business, or any elements thereof, or any content provided on the Company Site. Affiliate may only access the Company Site via web browser, email, or in a manner approved by Company. Affiliate shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Company Site tags, source codes, links, pixels, modules, or other data provided by or obtained from Company that allows Company to measure ad performance and provide the Affiliate Program. In addition, Affiliate acknowledges that all Program Data, including but not limited to non-public information, data, and reports received by Affiliate from Company as part of the Affiliate Programs are proprietary to and owned by Company, even if Affiliate’s advertising activity contributed in some part to the Program Data. If instructed to do so by Company, Affiliate will immediately destroy and discontinue the use of any such Program Data and any other material owned by Company or its third-party Advertisers.

8. CONFIDENTIAL INFORMATION. Each Party agrees to use the other Party’s Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other Party’s Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving Party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the Parties; (b) any disclosure is required by applicable law; provided, that the receiving Party uses reasonable efforts to give the disclosing Party reasonable advance notice thereof so as to afford the disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing Party. For the purposes of this Agreement, “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding any existing or contemplated Company services, products, processes, techniques, or know-how, or any information or data developed as part of the Affiliate Program.

9. TERM AND TERMINATION.

9.1. Term. This Agreement shall begin on the date first agreed to by Affiliate (the “Effective Date”) and remain in effect for an initial term of one (1) year. Unless terminated by either Party upon thirty (30) days' notice prior to the end of the initial term or any renewal term, the Agreement shall automatically renew for successive one (1) year terms.

9.2. Termination. Either Party may terminate this Agreement, or any Insertion Order or Campaign, effective upon written notice, for any reason or no reason, at any time upon three (3) days’ written notice to the other Party. In the event that either Party (i) files a voluntary petition in bankruptcy, (ii) makes an assignment for the benefit of its creditors, or (iii) breached any of the material terms of this Agreement, this Agreement shall automatically terminate. Such termination shall be automatic and shall not require any action by either Party.

9.3. Effect of Termination. Upon termination of this Agreement, any and all licenses and rights granted to Affiliate in connection with this Agreement shall immediately cease and terminate. Further, upon termination of this Agreement, Affiliate will: (i) immediately discontinue the use of the Affiliate Program and any Program Data; (ii) immediately cease to use, and remove from the Affiliate’s websites, any and all Creative, advertisements and/or related materials made available to Affiliate in connection with Affiliate’s participation in the Affiliate Program; and (iii) immediately cease transmitting any and all emails, text messages, or other communications in connection with any Campaign. In the event of termination of this Agreement, Sections 7, 8, 9.3, and 10–15, and the indemnification obligations in Exhibits A, B, and C shall survive.

10. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.

10.1.Representations. Affiliate represents and warrants that: (i) Affiliate has all necessary rights and authority to enter into this Agreement and to place advertisements on its website(s), social media accounts, through its personal email address, or those of its Third-Party Publishers and other partners (collectively, the “Affiliate Media”); (ii) Affiliate owns and/or has the right to use all materials contained on Affiliate Media; (iii) the Affiliate Media and the content contained on the Affiliate Media will not infringe or violate the patents, copyrights, trademarks, rights of publicity, defamation, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party; (iv) the Affiliate will not violate any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules, and regulations, or industry standards, 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”), Canada’s Anti-Spam Law (“CASL”), the Telephone Consumer Protection Act, 47 U.S.C. §§227, et seq. (“TCPA”), the California Automatic Renewal Law, the Federal Trade Commission Act (“FTC Act”), all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the General Data Protection Regulation (EU) 2016/679 ("GDPR"), the United Kingdom Data Protection Act of 1998 (as amended) (“UK Data Protection Act”), and the California Consumer Privacy Act (“CCPA”); and (v) Affiliate has all necessary rights, certificates, licenses, and registrations to operate its business within its jurisdiction and has and will maintain all such licenses and registrations in good standing and has and will comply with all rules and regulations specific to its industry. To be clear, Affiliate represents and warrants that it knows, understands, and complies with all applicable laws in both the jurisdiction where Affiliate is located and the jurisdiction(s) in which Affiliate conducts its advertising activities.

10.2.Indemnification. Affiliate, on its own behalf, and on behalf of its respective third-party partners (including, without limitation, Third-Party Publishers), affiliates, directors, employees, agents, successors, and assigns (collectively, the “Indemnitor”) will defend, indemnify, and hold harmless Company and its third-party Advertisers, endorsers, affiliates, directors, employees, agents, successors and assigns (collectively, the “Indemnitee”) from and against all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Claims”) arising from or related to: (i) any negligent act or omission by Indemnitor, including any Fraud; (ii) any breach of this Agreement by the Indemnitor; (iii) any breach by Indemnitor of any Campaign-Specific Terms; (iv) any violation or alleged violation by Indemnitor of any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules, and regulations, or industry standards, including without limitation, CAN-SPAM, California’s 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 CCPA, the GDPR and the UK Data Protection Act; and (v) any violation or alleged violation by Indemnitor of the rights of any third party. The Indemnitee will provide Indemnitor with prompt written notice of the Claim for which the Indemnitee intends to claim such indemnification, and Indemnitor shall have the right to participate in, and, to the extent the Indemnitor so desires, to assume sole control of the defense thereof with counsel selected by the Indemnitor; provided, however, and notwithstanding the foregoing, that the Indemnitee shall have the absolute right to retain their own counsel, with the fees and expenses to be paid by the Indemnitee. Indemnitor will have no authority to stipulate to any judgment or settle any Claim on the Indemnitee’s behalf without the written consent of the Indemnitee. Nothing in this Section shall limit any other remedy of the Parties. These obligations will survive any termination of the Agreement.

11. DISCLAIMER OF WARRANTY. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY THAT AFFILIATE WILL GENERATE FEES THROUGH THE AFFILIATE PROGRAM. THE AFFILIATE PROGRAM AND ALL CREA TIVE ARE PROVIDED “AS IS” AND “AS A V AILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CREATIVE, THE AFFILIATE PROGRAM, THE COMPANY SITE, THE TRACKING PLATFORM, CAMPAIGNS, ADVERTISEMENTS, SUPPRESSION LISTS, AND PRODUCTS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DISCLAIMS ALL WARRANTIES THAT THE AFFILIATE PROGRAM WILL MEET AFFILIATE’S REQUIREMENTS OR EXPECTATIONS AND THAT THE OPERATION OF THE AFFILIATE PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE.

12. LIMITATION OF LIABILITY. EXCEPT (I) AS TO THE OBLIGATIONS AND LIABILITIES ARISING OUT OF SECTION 9, SECTION 10, AND FOR FRAUD, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, AND BREACHES OF EXHIBITS A, B, AND/OR C, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, STATUTORY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE OR PROFITS) RESULTING FROM, ARISING OUT OF, OR RELATED TO ITS PERFORMANCE OR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER, OR BREACH OF, THIS AGREEMENT, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT (I) AS TO THE OBLIGATIONS AND LIABILITIES ARISING OUT OF SECTION 9, SECTION 10, AND FOR FRAUD, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, AND BREACHES OF EXHIBITS A, B, AND/OR C, EACH PARTY'S LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE AGGREGATE OF ALL AMOUNTS RECEIVED BY AFFILIATE FROM COMPANY HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR INCIDENTS GIVING RISE TO SUCH LIABILITY.

13. NON-SOLICITATION WITH ADVERTISERS. During the term of this Agreement, and for a period of six (6) months thereafter, Affiliate will not participate in any performance-based advertising relationship with any Advertiser whose Campaigns are or were posted on the Company Site, unless a previously existing business relationship between Advertiser and Affiliate can be demonstrated to the reasonable satisfaction of Company. Both Parties agree and acknowledge that if Affiliate violates its obligations hereunder, Company will be entitled to damages in the amount of twenty-five percent (25%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Affiliate.

14. GOVERNING LAW; JURISDICTION AND VENUE.

14.1. Choice of Law. This Agreement, together with Exhibits A, B, and C, and any Insertion Orders or other Campaign-Specific Terms, shall be treated as though this Agreement were executed and performed in Denver, Colorado and shall be governed and construed in accordance with the laws of the State of Colorado without regard to conflict of law principles.

14.2. Elective Arbitration. At the election of either Party, any dispute, of any nature whatsoever, between Affiliate and Company arising out of or relating to the Application or this Agreement, including Exhibits A, B, and/or C, Insertion Orders, and any Campaign-Specific Terms, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules. The tribunal will consist of a sole arbitrator. The seat of the arbitration will be Denver, Colorado. The language to be used in the arbitral proceedings will be English. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS fees) to the prevailing party. The Parties hereby acknowledge that without this provision, each would have the right to sue in court with a jury trial or to participate in a class action.

14.3. Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude Affiliate 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 Affiliate 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.

14.4. Venue. The exclusive venue for any non-arbitration action arising out of or under this agreement—including, without limitation, any litigation between the Parties where neither has elected to arbitrate, any motion to compel arbitration, any remedies in aid of arbitration, or any petitions for equitable relief—shall be the state and federal courts located in or nearest to Denver, Colorado. The Parties hereby waive any objection to the venue or personal jurisdiction of such courts.

14.5. 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.

15. MISCELLANEOUS.

15.1. Entire Agreement. This Agreement, together with all Exhibits, any Insertion Orders, and any other Campaign-Specific Terms, constitutes the entire agreement between the Parties and supersedes all prior agreements or understandings between the Parties, whether written or oral. If, as a technical requirement of providing the Affiliate Program or vetting Affiliate, Company is required to accept terms and conditions on Affiliate’s website or mobile app, such terms shall be of no binding effect and shall not modify this Agreement or the Parties’ relationship.

15.2. Assignment. Except in connection with a merger, acquisition, or sale of all or substantially all of Affiliate’s assets related to this Agreement, Affiliate may not assign this Agreement and its rights and obligations hereunder, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect. Company may assign this Agreement, and any and all rights granted hereunder, in its sole discretion, at any time, without Affiliate’s consent.

15.3. Notices. Except as otherwise provided in this Agreement, all notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed email, express courier, or certified mail, return receipt requested, to the addresses designated from time to time by the Parties. Notice will be effective upon sending.

15.4. Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a Party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach. If any provision of this Agreement is held to be invalid or unenforceable with respect to a Party, the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable, shall not be affected, and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

15.5. Independent Contractors. The relationship of the Parties under this Agreement is one of independent contractors and nothing herein should be construed to constitute the Parties as partners, joint ventures, agent and principal, or employer and employee. Nothing herein will give either Party any right or authority to bind the other, and neither Party will bind the other to any obligation to any third party. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.

15.6. Independent Counsel. Each Party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either Party by reason of its drafting.

15.7. Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such Party.

15.8. Execution. This Agreement may be executed and delivered in counterparts by facsimile and/or electronic signature, each of which so executed and delivered counterpart is an original, and such counterparts, together, will constitute but one and the same instrument.

Exhibit A

AFFILIATE ACCEPTABLE USE POLICY

This Affiliate Acceptable Use Policy (“AUP”) is intended to help the Affiliate understand the types of websites, traffic, and affiliate conduct that that Company believes to be appropriate or inappropriate. Please keep in mind that this AUP is intended as a guideline, and not as an exhaustive list of content and conduct that Company finds appropriate or inappropriate. This AUP is part and parcel of the Agreement between the Parties, and the requirements and prohibitions herein are binding contractual terms.

Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Agreement. In the event of a conflict between the terms and provisions of any other agreement and this AUP, the terms and provisions of, first, the AUP, and, second, the Agreement, shall control. As in the Agreement, all references to “Affiliate” in this AUP shall mean and include Affiliate and all of Affiliate’s Third-Party Publishers. Affiliate is responsible for ensuring the awareness and compliance of its Third- Party Publishers with this AUP.

1. LEGAL COMPLIANCE. Affiliate 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, the California Automatic Renewal Law, 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 GDPR, the UK Data Protection Act, and the CCPA. Ignorance of or misinterpretation of the law is not an excuse for violating it. Affiliate is responsible for knowing, understanding, and complying with all laws and regulations applicable in both the jurisdiction where Affiliate is located and the jurisdiction(s) where Affiliate conducts its advertising activities.

2. WEBSITE REQUIREMENTS. Any and all websites or media that Affiliate 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 entering or leaving the website;
Close when instructed, i.e., when a user seeks to close or otherwise leave the website, the website must close down and no other behavior should result;
Not “mouse trap,” i.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.

3. PROHIBITED CONTENT AND CONDUCT. Prohibited Affiliate 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 Affiliate and a current or former employer concerning the intellectual property Affiliate create or created during Affiliate’s employment;
Is false, misleading, fraudulent, or deceptive;
States, suggests, or implies that any Product is capable of treating or curing any medical condition or disease;
Uses any of the following phrases or words: cancer, stroke, heart attack, treat(s)(ing), heal(s)(ing), or cure(s)(ing).
Is libelous or defamatory, or violates the privacy or publicity rights of any third party;
Implies a connection or endorsement by any individual (e.g., a celebrity, a noted health expert) or entity
(a business, a magazine, a new outlet) with which Affiliate has no such connection or endorsement;
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 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 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 illegal substances and drugs;
Advertises: (i) tobacco products, (ii) illegal substances, such as narcotics, (iii) ammunition, firearms, paintball guns, bb guns, or weapons of any kind, (iv) gambling, including, without limitation, any online casino, sports books, bingo, or poker website, (v) get rich quick or other money making opportunities that offer compensation or financial reward in exchange for little or no investment, (vi) adult friend finders or dating sites with a sexual emphasis, (vii) adult toys, videos, or other adult products, (viii) uncertified pharmaceutical products, (ix) spy cams or other illegal surveillance products, and (x) 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 (e.g., cash, points, prizes, contest entries, gift cards, etc.) to viewers for clicking on the advertisement, for submitting personally identifiable information, completing surveys, or for performing any other tasks;
Harvests or otherwise collects information about Company’s Advertisers or other affiliates;
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 GDPR, the UK Data Protection Act of 1998, the CCPA and the Utah and Michigan “Child Protection Registry Laws” as discussed more fully herein.

4. PRIVACY. Affiliate shall comply with all applicable privacy laws. If Affiliate advertises Campaigns through its own website, or generates an email or phone database through Affiliate’s own website, Affiliate further agrees to post conspicuously on each of Affiliate’s websites a privacy policy, linked, at a minimum, from the website’s home page, that: (a) discloses Affiliate’s privacy practices, including Affiliate’s use of a third party for Affiliate’s ad serving activities, (b) identifies the collection and use of information gathered in connection with both ad serving activities and delivery of the Affiliate’s content, including express explanation of Affiliate’s use of “cookies,” and (c) provides the user with instructions on how to opt-out out from such collection and/or other rights the user may have with respect to their personal data. If Affiliate is collecting user emails, telephone numbers, or if Affiliate is located in or advertising to users in the UK, EU, Canada, California, or such other jurisdiction where affirmative consent is required, then Affiliate shall obtain the user’s affirmative consent to the privacy policy prior to collecting any personal data from the user.

5. SOCIAL MEDIA AND OTHER ENDORSEMENTS. In connection with Affiliate’s promotion of Campaigns on or through Affiliate’s own websites, Affiliate’s social media accounts, emails, or other advertising, Affiliate shall disclose clearly and conspicuously, and in close proximity to the endorsement, that Affiliate receives compensation in the form of affiliate commissions in exchange for such endorsement. Affiliate’s personal endorsement of any Product must reflect the honest opinions, findings, beliefs and/or experience of Affiliate with respect to the Product, and may not contain representations for which the Affiliate does not have substantiation or that would be considered deceptive. Affiliate further agrees to comply with the Federal Trade Commission’s Revised Endorsements and Testimonials Guide.

Outside of Affiliate’s own personal endorsement, Affiliate is prohibited from using an endorsement or testimonial unless Company has received, reviewed and provided express, prior written consent to such advertising.

6. INCENTIVIZED TRAFFIC AND SURVEYS. Affiliate shall not generate any Fees through incentivized traffic (e.g., advertising methods that imply, promise, or give a payment, reward, or prize to users for completing an Action) or survey traffic. Fees generated through incentivized traffic or surveys shall be deemed non-payable.

7. EXAMPLES OF AFFILIATE FRAUD. The following activity, without limitation, is considered Fraud 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 simulate sales or inflate Fees;
The use of “cookie stuffing,” “cookie dropping,” “forced clicks,” or “cookie sprinkling;”
The artificial inflation of Actions 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 Affiliate fraudulently adds or inflates Actions or transactions through fraudulent traffic generation, whether specifically proscribed above or otherwise, and as determined by Company in its sole discretion, Affiliate will forfeit Affiliate’s entire Fees for all advertising activity for Company and Affiliate’s Account will be terminated.

Exhibit B
TELEMARKETING / SMS ADVERTISING POLICY

The following terms and conditions (the “SMS Policy”) apply to all advertising of Campaigns by Affiliate through telemarketing and/or SMS or text message (in either event, “SMS Marketing”). By engaging in such marketing as part of its participating in the Affiliate Program, Affiliate agrees to comply with the terms of this SMS Policy.

1. Capitalized Terms; Conflicts. All capitalized terms not expressly defined herein shall have the meaning ascribed to them in the underlying Agreement. In the event of a conflict between the terms of this SMS Policy and the Agreement, this SMS Policy shall govern as to all matters related to SMS Marketing, and the Agreement shall govern as to all other matters.

2. No Telemarketing. Telemarketing is never permitted in the Affiliate Program and Affiliate agrees not to engage in telemarketing for any Campaign.

3. No SMS Marketing Absent Authorization. Affiliate shall not engage in any SMS Marketing for a Campaign without express written authorization to do so in an Insertion Order. Neither the existence of this SMS Policy nor anything herein shall be construed to authorize SMS Marketing absent such express authorization.

4. Consent. Affiliate may only engage in SMS Marketing by contacting consumers (“Consenting Consumers”) who have provided Affiliate with “prior express written consent” (“Valid Consent”) as that term is defined in the Telephone Consumer Protection Act, 47 U.S.C. §227, as amended, and its implementing regulations and applicable F.C.C. rulings and orders (collectively, the “TCPA”) to be contacted via SMS Marketing by or on behalf of the entity designated by Company (“Named Company Advertiser”). The language to be used by Affiliate to obtain Valid Consent from Consenting Users (“Consent Disclosure”) must include the Named Company Advertiser, as well as all language and other elements required under the TCPA, as well as any other rules applicable to SMS Marketing.

5. Prior Approval by Company. The Consent Disclosure shall be provided to Company for its prior written approval before any SMS Marketing in connection with a Campaign commences. No copy or text other than the Consent Language that was pre-approved by Company, in writing, may be used by Affiliate for its SMS Marketing activities and the Valid Consent must not be combined with any other consent. Affiliate will not edit, modify, deviate from or otherwise make any changes to the Consent Disclosure in any manner without Company’s prior written approval in each instance.

6. Consent Records. Affiliate shall maintain or cause to be maintained records (“Consent Records”) of the Valid Consents obtained from each Consenting User, including the date and time stamp of when the Valid Consent was obtained, the IP address/device ID of the Consenting User, the Consent Language associated with each such Valid Consent and such other information, and/or documentation, that is reasonably necessary to prove in a regulatory or judicial proceeding, or in discussions that could reasonably be expected to predate such a proceeding, that the Affiliate secured legally sufficient Valid Consent from the Consenting User to be contacted via SMS Marketing by Affiliate on behalf of the Named Company Advertiser. Affiliate shall maintain the Consent Records at its expense for at least 7 years, and shall provide such Consent Records to Company within three (3) business days of its written request therefor.

7. Third-Party Publishers. If Affiliate is an advertising network or otherwise contracts with Third-Party Publishers for the provision of SMS Marketing pursuant to the Agreement, Affiliate shall vet with scrutiny all such Third-Party Publishers and only use those Third-Party Publishers who, in its reasonable commercial judgment, have the technical capabilities and appropriate training and management that enables such Third-Party Publishers to engage in SMS Marketing in compliance with this SMS Policy, the TCPA, and all other applicable laws, rules, and regulations. Affiliate shall be responsible for the acts and omissions of its Third-Party Publishers, and all references to “Affiliate” herein, shall be deemed to include and refer to Third-Party Publishers. Affiliate’s duty to indemnify Company, as set forth in Paragraph 9 below, shall be interpreted to include a duty by Affiliate to indemnify Company for the misconduct of all Third-Party Publishers.

8. Fraud. Payable Actions, including leads, generated from SMS Marketing that do not comply with this SMS Policy shall be deemed “Fraudulent Leads” for which no payment is due to Affiliate. If Company presents Affiliate with evidence of Fraudulent Leads, it is Affiliate’s responsibility to prove by clear and convincing evidence that it is not committing Fraud or otherwise violating the terms of this SMS Policy in its SMS Marketing. If, within seven (7) days of notification of the Fraudulent Leads, Affiliate is not able to prove the absence of Fraud pursuant to this Paragraph, Affiliate will forfeit all Fees for Fraudulent Leads, Affiliate's account will be terminated, and, in addition to all other remedies available to it under the law and the Agreement, Company may: (a) disable any links contained in Affiliate’s SMS Marketing; (b) withhold all payments otherwise due and owing to Affiliate; and/or (c) hold Affiliate liable for any and all damages and/or claims attributable to same, without regard to any of the limitations of liability contained in the Agreement.

9. Indemnification. In addition to the Parties’ respective indemnification obligations under the Agreement, Affiliate agrees to defend, indemnify, and hold harmless Company, its subsidiaries and their respective directors, members, officers, employees and agents from any and all damages, liabilities, reasonable attorneys’ fees, judgments, settlements, costs, and expenses incurred as a result of a third party claim, judgment, or proceeding relating to or arising out of Affiliate’s or a Third-Party Publisher’s breach of its representations, warranties, and obligations under this SMS Policy, including, without limitation, any failure to comply with the TCPA or other SMS Marketing rule or regulation. Any indemnification by Affiliate under this Paragraph shall follow the notification requirements and procedures set forth in the Agreement with respect to indemnification generally.

10. Disputes. All disputes arising out of or under this SMS Policy shall be subject to the choice of law, jurisdiction, forum selection, and arbitration (if any) provisions of the Agreement.

Exhibit C
EMAIL ADVERTISING POLICY

The following terms and conditions (the “Email Policy”) apply to all advertising of Campaigns by Affiliate through email (in either event, “Email Marketing”). By engaging in such marketing as part of its participating in the Affiliate Program, Affiliate agrees to comply with the terms of this Email Policy.

1. Capitalized Terms; Conflicts. All capitalized terms not expressly defined herein shall have the meaning ascribed to them in the underlying Agreement. In the event of a conflict between the terms of this Email Policy and the Agreement, this Email Policy shall govern as to all matters related to Email Marketing, and the Agreement shall govern as to all other matters.

2. No Email Marketing Absent Authorization. Affiliate shall not engage in any Email Marketing for a Campaign without express written authorization to do so in an Insertion Order. Neither the existence of this Email Policy nor anything herein shall be construed to authorize Email Marketing absent such express authorization.

3. Consent. Affiliate may only engage in Email Marketing by emailing consumers (“Consenting Consumers”) who have provided Affiliate with valid consent in the form required by the laws where the Consenting Consumer is located (“Valid Consent”). For example, if the Consenting Consumer is located in a jurisdiction where double opt-in is required to consent to receive unsolicited email marketing messages, then Valid Consent means double opt-in as to such consumer. Affiliate shall not transmit any email if Affiliate 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 service was not to give or sell the address to others.

4. Consent Records. Affiliate shall maintain or cause to be maintained records (“Consent Records”) of the Valid Consents obtained from each Consenting User, including, at a minimum: (i) opt-in date and time, (ii) registration source, (iii) first and last name, (iv) mailing address, (v) email address, (vi) phone number, (vii) privacy policy of source website at the time of opt-in, (viii) clear and conspicuous “check-box” disclosures at the time of opt-in, and (ix) any other information collected. Affiliate will provide such Consent Records to Company within one (1) business day of any request for the same.

5. Email Content Requirements. Affiliate shall not transmit any email:

Using any Creative (including “from” lines and “subject” lines) other than that supplied and/or approved in advance by Company;
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 Affiliate (e.g., @Oprah.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 business name and physical postal address of the Affiliate; 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.

6. Affiliate Identification. Affiliate agrees to do at least one of the following: (a) identify itself in the “from” line by using a domain name that includes Affiliate’s name; or (b) ensure that Affiliate’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.

7. Suppression Lists. To the extent that Company provides an opt-out or unsubscribe list (the "Suppression List") to Affiliate in connection with the Affiliate Program, Affiliate shall regularly scrub its email database against such Suppression List no less than every three (3) days and shall not at any time send any commercial emails to any individuals on such Suppression List. Affiliate will not use any Suppression List in any manner other than for the purpose set forth herein. Affiliate shall not obtain any ownership interest or rights in and to any Suppression List.

8. Unsubs. Affiliate shall not send any email 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.

9. Third-Party Publishers. If Affiliate is an advertising network or otherwise contracts with Third-Party Publishers for the provision of Email Marketing pursuant to the Agreement, Affiliate shall vet with scrutiny all such Third-Party Publishers and only use those Third-Party Publishers who, in its reasonable commercial judgment, have the technical capabilities and appropriate training and management that enables such Third-Party Publishers to engage in Email Marketing in compliance with this Email Policy, CAN-SPAM, California’s Anti-Spam Law, CASL, and all other applicable laws, rules, and regulations. Affiliate shall be responsible for the acts and omissions of its Third-Party Publishers, and all references to “Affiliate” herein, shall be deemed to include and refer to Third-Party Publishers. Affiliate’s duty to indemnify Company, as set forth in Paragraph 11 below, shall be interpreted to include a duty by Affiliate to indemnify Company for the misconduct of all Third-Party Publishers.

10. Fraud. Payable Actions, including leads, generated from Email Marketing that do not comply with this Email Policy shall be deemed “Fraudulent Leads” for which no payment is due to Affiliate. If Company presents Affiliate with evidence of Fraudulent Leads, it is Affiliate’s responsibility to prove by clear and convincing evidence that it is not committing Fraud or otherwise violating the terms of this Email Policy in its Email Marketing. If, within seven (7) days of notification of the Fraudulent Leads, Affiliate is not able to prove the absence of Fraud pursuant to this Paragraph, Affiliate will forfeit all Fees for Fraudulent Leads, Affiliate's account will be terminated, and, in addition to all other remedies available to it under the law and the Agreement, Company may: (a) disable any links contained in Affiliate’s Email Marketing; (b) withhold all payments otherwise due and owing to Affiliate; and/or (c) hold Affiliate liable for any and all damages and/or claims attributable to same, without regard to any of the limitations of liability contained in the Agreement.

11. Indemnification. In addition to the Parties’ respective indemnification obligations under the Agreement, Affiliate agrees to defend, indemnify, and hold harmless Company, its subsidiaries and their respective directors, members, officers, employees and agents from any and all damages, liabilities, reasonable attorneys’ fees, judgments, settlements, costs and expenses incurred as a result of a third party claim, judgment or proceeding relating to or arising out of Affiliate’s or a Third-Party Publisher’s breach of its representations, warranties, and obligations under this Email Policy, including, without limitation, any failure to comply with CAN-SPAM, California’s Anti-Spam Law, CASL, or other Email Marketing rule or regulation. Any indemnification by Affiliate under this Paragraph shall follow the notification requirements and procedures set forth in the Agreement with respect to indemnification generally.

12. Disputes. All disputes arising out of or under this Email Policy shall be subject to the choice of law, jurisdiction, forum selection, and arbitration (if any) provisions of the Agreement.