ShopperBuzz Publisher Program

ShopperBuzz Publisher Agreement 

This ShopperBuzz Publisher Agreement (“the Publisher Agreement” or the “Agreement”), including all associated agreements, exhibits, preamble, policies and guidelines included and incorporated by reference herein is entered into between ShopperBuzz e-commerce Solutions Canada Inc. with a principal place of business at 2000 McGill College, Montreal, H3A 3H3 (hereinafter referred to in this Agreement as “Company”)  and you (hereinafter referred to in this Agreement variously as “Publisher”, “you” or “your”). 

Please read this agreement carefully. If you fully agree with the terms and conditions of this Publisher Agreement, you may elect to submit an online application form on Shopperbuzz.org for our review.  

By submitting an online application, you acknowledge and agree to having read, understood and assented to this Publisher Agreement.  If Shopperbuzz accepts your application, you will be notified by email upon which time this Publisher Agreement shall become a legally binding agreement between you and Shopperbuzz E-commerce Solutions Canada Inc.  This Publisher Agreement will govern your participation in our program.  We may, in our sole discretion, reject your application, for any or no reason at all. 

PREAMBLE:  The preamble of this Agreement constitutes an integral part hereof. 

This Publisher Agreement is subject to and incorporates by reference the Company’s  (a) Terms and Conditions for Publishers attached hereto as Exhibit A; (b) Guidelines for Publishers attached hereto as Exhibit B; and (c) Data collection and privacy principles attached hereto as Exhibit C (Exhibits B and C together shall be referred to herein as the “Guidelines”). Publisher agrees and understands that it is bound by the Guidelines outlined in Exhibits B and C and that any violation by Publisher (or of any third party acting on Publisher’s behalf) of any of the said Exhibits shall constitute a material breach of this Publisher Agreement and may result in irreparable harm to Company. Publisher further agrees and understands that any breach of the terms and conditions contained in Exhibits A, B or C shall result in the immediate cancellation of all financial obligations owed by Company to Publisher. The company also reserves the right to update Exhibit B from time to time; such updates shall be communicated to Publisher according to the notice provisions below. 

Exhibit A

Publisher Terms and Conditions

These Publisher Terms and Conditions (“Terms”) including the Preamble and Exhibits (the “Agreement“) are entered into as of the Effective Date by and between Company and Publisher and incorporated by reference as mutually agreed and signed by the parties (Company and Publisher, each a “Party” and collectively the “Parties“).

WHEREAS, Publisher is the owner and/or operator of one or more networks, internet service providers,  software, websites, applications, or other web services (collectively referred to as the  “Publisher Product” or “Product(s)”) through which Publisher wishes to deliver End Users that Publisher will monetize using Company’s Advertising Technology, as more fully defined below; 

WHEREAS, Company, either directly or indirectly, maintains due licenses, rights and permissions to deliver promotional material, offers and various forms of advertisements (the “Offers”) via Company’s Advertising Technology to End Users pursuant to this Agreement; 

WHEREAS, Company, provides access either directly or indirectly to analytical applications and back-end infrastructure for integrating, managing and optimizing traffic data in real time (the “Big Data Platform”); and

WHEREAS, The Parties wish to cooperate as stated under this Agreement by way of utilizing and integrating the Company’s Advertising Technology withthe Publisher Product and make such Technology available to the End Users, as well as make use of the Big Data Platform;  

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Definitions:
   As used in this Agreement, the following definitions shall have their respective meanings:

   “Advertising Material” shall mean any creative, graphics, images, logos, links, URLs, text, video and any other intellectual material included within, or as part of, the Offers delivered via the Advertising Technology;

   “Advertiser(s) Partner(s)” shall mean any of Company’s upstream advertisers, merchants, suppliers, feed providers or other third parties owning, operating and/or supplying the Offers.

   “Advertising Technology” shall mean Company’s technical solution through which Publisher will be able to deliver Offers to End Users. Company’s technical solution could entail APIs, URL (static or dynamic) integrations, JavaScript, RTB / XML integrations and/or other custom solutions.

   “Click” shall mean the act performed by an End User through any of Publisher’s Products, in order to access, view and/or purchase an Offer on an Advertiser Partner website.

   “Confidential Information” shall mean any and all information of whatever kind disclosed by one Party to the other Party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, lists, business plans, technical data, product ideas, personnel, contract and financial information, and the terms of the Agreement. Confidential Information shall not include information which (a) becomes a part of the public domain through no act or omission of the receiving Party; (b) was, as can be proven by written records, in the receiving Party’s lawful possession prior to the disclosure and had not been subject to limitations on disclosure or use; or (c)  is lawfully disclosed hereafter to the receiving Party, without restriction, by a third party who did not acquire the information directly or indirectly from the disclosing Party.

   “Conversion to Sales” shall mean an Advertiser Partner’s completed sale of an Offer to an End User following a Click, including any such sale completed during a browsing session originated by a Click.

   “Data” shall mean data pertaining to the End Users or their devices, as derived or collected through the Advertising Technology under the terms pursuant to this Agreement.

   “Shopperbuzz Data” shall mean any and all data accessible to publishers made available by Shopperbuzz.

   “Deductions” shall mean the applicable and actual costs incurred by Company from delivering the Offers to End Users and from collection of the Gross Revenue from Advertiser Partners, including without limitation, rate for issuance of invoice and discount rate of credit card operators.

   “End User” shall mean each individual end user of a Publisher Product.

   “Intellectual Property” means all intellectual property rights, including, without limitation: (a) all inventions, whether patentable or not, all improvements thereto and derivatives thereof, and all patents and patent applications; (b) all registered and unregistered marks, domain names and registrations and applications for registration thereof; (c) all copyrights in copyrightable works, all other rights of authorship, including without limitation moral rights, and all applications and registrations in connection therewith; (d) all trade secrets and confidential business and technical information (including, without limitation, research and development, programming, know-how, proprietary knowledge, financial and marketing information, business plans, formulas, technology, engineering, production, operation and any enhancements or modifications relating thereto, and other designs, drawings, engineering notebooks, industrial models, software and specifications); (e) all rights in databases and data compilations, whether or not copyrightable; and (f) all copies and tangible embodiments of any or all of the foregoing (in whatever form, including electronic media).

   “Gross Revenue” shall mean all revenues actually collected and received by Company from Advertisers Partners, in connection with Clicks and Conversion to Sells, pursuant to the terms of this agreement;

   “Guidelines” shall mean the most current version of Company’s guidelines for publishers attached hereto as Exhibit B and Exhibit C, as may be updated from time to time upon new regulation, policy, Advertiser Partner’s request or upon Company’s discretion.

   “Link” shall mean a hyperlink that allows an end user to click on Offers.

   “Marks” means any and all trademarks, trade names, service marks or logos provided through the Shopping Feed owned or licensed by Company or Company’s licensors (including Advertiser Partners).

   “Revenue” shall mean the Gross Revenue less the applicable Deductions.

   “Offer(s)” shall have the definitions described in the preamble to these Terms including URL links and/or services offered for purchase or view by End Users and/or any data related thereto, including price, product, service, promotional text and images.

   “Prohibited Content” shall have its meaning under Exhibit B.

    

2. Services and Purpose
   1. During the Term of this Agreement, Company will provide Publisher with its Advertising Technology to be integrated with Publisher’s Publisher Product that was previously approved in writing by Company.  Both Company and Publisher will utilize best efforts to enable Publisher to deliver Offers to End Users.
   2. Publisher shall use the Advertising Technology as explicitly permitted under this Agreement and the License herein.
   3. Publisher hereby acknowledges and agrees that the Company serves as a platform for the delivery of the Offers and that the Offers including any Advertising Material are owned, delivered, operated and controlled by third parties (including by Advertiser’s Partners).  Offers are subject to periodic changes and modifications, including, but not limited to, removal or exclusion of merchants’ categories of products from time to time at their sole discretion.
   4. Publisher hereby acknowledges and agrees that the said third parties may drop a cookie on the End User’s browser upon a Click which shall remain in the End User’s browser unless End User deletes the browser cookies. Publisher must make available to End Users a privacy policy to govern Publisher’s data collection practices and disclose Publisher’s use of such third party cookies.
   5. Publisher shall not distribute or syndicate, assign or otherwise sub-license Company’s Advertising Technology through any product other than the approved Publisher Product.
   6. Publisher shall not distribute or share with third parties any Shopperbuzz data whatsoever without Company’s explicit prior written consent. Publisher shall also not share, under any circumstances, its access to the Big Data Platform to any third parties whatsoever. 
3. Grant of Limited License; Intellectual Property Provisions
   
   1. Subject to Publisher’s full compliance with this Agreement, Company grants Publisher a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sub-licensable, royalty-free license during the Term and in the agreed countries (if applicable) to integrate the Advertising Technology in the Publisher Product for the sole purpose of delivering Offers to End Users, as well as to access the Big Data Platform.
   2. Publisher shall not make any use of the Advertising Technology and/or the Offers and/or the Big Data Platform unless it is explicitly permitted to under this Agreement.  Publisher  agrees to refrain from the following, which includes, but is not limited to the following prohibited behaviors: (a) alteration or change of the look, feel or functionality of any Offer or Company’s Advertising Technology; (b) extraction of any Advertising Material from the Offers or otherwise make use of such material separately from its respective Offer; (c) use the Advertising Material or any portion thereof in any manner that may be considered to be an abuse of such material or otherwise constitute misuse or interference with the linking of an Offer to an Advertiser Partner’s website; (d) cache or store any Offer or Advertising Material.
   3. Any transfer of Publisher’s right under this license shall require prior approval in writing by Company.
   4. Publisher acknowledges and agrees that Company will have and retain sole and exclusive ownership of all right, title and interest in and to the Advertising Technology, the Big Data Platform and Shopperbuzz Data including any Intellectual Property rights therein, and that this Agreement gives Publisher no rights of ownership and no right, title or interest (including any associated Intellectual Property rights) in any or all of the Advertising Technology, Big Data Platform, Offers or corresponding Advertising Material, Intellectual Property, Marks and data. There are no implied licenses hereunder, and all rights not expressly stated herein are explicitly reserved by Company.
   5. Publisher agrees that it will not assert any Intellectual Property rights (including without limitation, copyright or trademark) in or to any of Company’s or Advertiser Partners’ Marks, or any part of these items or any derivative work of these items, and agrees not to challenge Company’s or Advertiser Partners’ proprietary rights in any way.
   6. Publisher shall utilize Company’s or Advertisers Partners’ provided content and services in a way that does not, in Company’s or Advertiser Partners’ sole discretion, blur or dilute, tarnish or adversely affect Company’s or Advertiser Partners’ proprietary rights.
   7. Publisher will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Advertising Technology and/or any other product or service offered by Company. It is hereby acknowledged by Publisher that any violation of this section shall constitute a material breach of this Agreement.
   8. Publisher shall not use Company’s or Advertiser Partners’ Marks or name, in combination with any other name or mark, in connection with Publisher’s own goods or services, or in any manner that may suggest or imply that Publisher or Publisher’s goods or services are supplied by, sponsored by, endorsed by or associated with, Company or Advertiser Partners, if applicable.
   9. Publisher shall not remove, obscure or alter any copyright notice or other marks contained in the Shopping Feed, Advertising Technology or Big Data Platform. 
4. Consideration, Taxes and Reports
   1. In connection with the integration of the Advertising Technology with Publisher and Publisher’s  Publisher Product, Company will compensate Publisher for each month or portion thereof of the Term (the “Consideration”).
   2. For each month or portion thereof in which Publisher utilizes Company’s Advertising Technology and Big Data Platform to generate valid revenues, Company will make payment to Publisher based upon the Revenues received by Company for valid Clicks, as solely determined by Company’s tracking system. Notwithstanding the foregoing, Publisher understands and agrees that its ability to earn the Consideration under this program is expressly contingent on Publisher’s continued compliance with this Agreement, including any and all guidelines as may be updated from time to time by Company.  Publisher agrees and understands that any breach by Publisher of this Agreement or failure by Publisher to abide by the terms and conditions of this Agreement will result in any amounts otherwise payable to Publisher during the interval of such failure to be deemed unearned and not subject to accrual and payment for the Consideration. Failure to cure any breach of Exhibit B or C within twenty-four (24) hours of Publisher’s receipt of Company’s notice, or any such shorter or longer time period as agreed to by the Parties shall be deemed a material breach of this Agreement and shall result in the immediate cancellation of all financial obligations owed by Company to Publisher.
   3. The Consideration is set at a baseline of (fifty) 50 % of Revenue (unless otherwise agreed in writing), adjusted daily by Company’s dynamic pricing system. Company’s dynamic pricing system shall apply daily discounts or increases to Publisher’s Consideration, based on key performance indicators and traffic quality, as shall be disclosed to Publisher daily in reporting sent to Publisher.  Consideration will be paid to Publisher within 90 days following the completion of each calendar month in which the Revenues was generated. The Parties may also agree to a different Consideration through mutually agreed written correspondence over e-mail.
   4. Taxes. All amounts payable by Company to Publisher hereunder are inclusive of any sales, use and other taxes or duties (collectively, the “Taxes”). Publisher shall be solely responsible for payment of any applicable Taxes.  Company shall be entitled to withhold and/or deduct any Taxes from any amounts due and applicable to Publisher if required to do so by applicable law.
   5. Reports. The Consideration will be calculated solely based upon Company’s records. During the Term hereof, Company will provide Publisher with daily reports where Publisher will be able to view measurements or statistics regarding performance of the Services (the “Reports”). Publisher acknowledges that the monthly Reports are partially based upon third party reporting, Publisher’s traffic quality, and compliance with the terms and conditions of this Agreement, and are therefore: (i) subject to adjustments at all times until actual payment is made to Company by Company’s Advertiser Partners; (ii) occasional delays may occur that are out of Company’s control and responsibility. Any online (either daily or monthly) reports are not guaranteed to be accurate and are subject to adjustments resulting from, among other things, a final accounting, deductions, traffic performance or bad referrals to Advertiser Partners’ websites, all as determined by such Advertiser Partners in their sole and absolute discretion. In no case and in no event shall Company be liable for any unavailability, or inaccuracy, (temporary or otherwise), of the information contained in the Reports.
   6. If Publisher disputes the information detailed in a Report, Publisher will provide Company with a written notice that will specify the reasons for such dispute (the “Dispute Notice”), by no later than five (5) business days following receipt of such Report by Publisher (the “Dispute Notice Period”). Following receipt of a Dispute Notice, Company will examine and respond to Publisher with a reasonable time period with the results of such examination. Company may withhold payment of any disputed amounts until the dispute is resolved.
      Company reserves the right to withhold payment from Publisher if Publisher has engaged in activity that can reasonably demonstrated to be deceptive or fraudulent in nature, as determined by Company (or Advertiser Partner). Examples of such deceptive or fraudulent acts may include, but are not limited to: excessive bad referrals to Advertiser Partner’s website; extraordinarily high numbers of repeat clicks; and clicks from non-approved root URLs or referrals generated using malware or spyware.
       
5. Representations and Warranties; Indemnification
   1. Each Party represents and warrants that (a) it is duly organized, validly existing, and in good standing in the jurisdiction of its incorporation; (b) this Agreement is a valid agreement enforceable against that Party according to its terms and does not contradict another agreement by which such Party is bound; (c) if a Party is an entity, the person entering into this Agreement on behalf of such entity has been properly authorized and empowered to do so; and (d) it has the right and authority to enter into this Agreement and grant all rights granted herein.
   2. Publisher represents and warrants that: (a) Publisher (including Publisher’s acts or omissions where applicable) and/or Publisher Product including the content and functionalities therein (as applicable):  (i) is and shall remain compliant with any applicable law, rule and regulation, with the Guidelines and with any industry related guidelines and best standards as may be issued from time to time; (ii) shall not include, contain, facilitate or otherwise engage with Prohibited Activity or Prohibited Content (as defined under Exhibit B); (b) Publisher owns, or is validly licensed to use, or is otherwise permitted to use its Publisher Product for the purposes described under this Agreement.
   3. Publisher represents and warrants that it will not employ and/or serve End Users with any technology and/or offers which might: (i) hinder, block or otherwise interfere with the Offers (or any Advertising Material); or (ii) interfere or harm the operation and/or performance of Advertising Technology in any manner whatsoever.
   4. Publisher represents and warrants that its websites, services, content or Publisher Product, if applicable complies with all applicable laws and does not contain or promote, nor links to another website that contains, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content;
   5. Publisher represents and warrants that its Publisher Product, websites, services and content does not knowingly contain any promotion of illegal substances or activities, pornographic, injection, incentive, affiliates, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering, incentivized traffic or otherwise objectionable content.  Publisher further represents and warrants that it will not employ toolbars or toolbar applications that offer no value to End Users, ad injections, search enhancement and data exchange modules.
   6. Publisher represents and warrants that it owns the legal right to use and distribute all content, copyrighted material, products, and services displayed on its websites and/or Publisher Product(s).
   7. Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any of its programs;
   8. Each Party represents and warrants that it will make every effort to uphold the highest ethical and commercial standards. Publisher represents and warrants that it shall not engage in any fraudulent activities.  Fraudulent activities include but are not limited to any of the following: (a) fictitious downloads or installations of software; (b) automated and/or fraudulent clicks on any marketing materials or methods employed by Publisher.  If, Publisher is duly notified of any fraudulent activities discovered by Company pursuant to the notice provisions in this Agreement, and Publisher does not take any action to stop or remedy such fraudulent activities, Publisher agrees that it will be responsible for all associated costs and legal fees resulting from those fraudulent activities.
   9. If any errors or undesirable results occur due to no fault of Company, Company shall not be responsible for losses and Publisher may not be compensated.
   10. Company represents and warrants that Publisher retains all right, title and interest in and to the Data; notwithstanding the foregoing, Publisher agrees that Company may use the Data for its legitimate business purposes during the Term and thereafter, in accordance with applicabledata protection laws and regulations, and in accordance with Company’s privacy policy, as may be amended from time to time.
   11. Publisher represents and warrants that Company retains all right, title, interest in and sole and exclusive ownership to Company’s Advertising Technology,  the Big Data Platform and  Shopperbuzz data.
   12. Publisher agrees to defend, indemnify and hold Company and its licensors, Advertiser Partners, affiliates, respective successors and permitted assigns, and the officers, directors, employees, and agents of each harmless from and against any and all present or future, actual or contingent losses, costs, claims, liabilities, damages, suits, actions, causes of action or expenses (including, without limitation, reasonable legal fees and other expenses incurred by Company or its Advertiser Partners in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal)) (“Claims”) arising from or in connection with (a) any breach of Publisher’s representations and warranties or any provision of this Agreement or (b) the gross negligence, willful misconduct or fraudulent acts or omissions of Publisher or its respective directors, officers, employees or agents in connection with the entry into or performance of this Agreement (whether or not the facts, matters or circumstances giving rise to such Claims are known to Publisher or to any other person at the date of this Agreement) or (c) its Publisher Product. 
6. Term and Termination
   1. Term. This Agreement commences as of the Effective Date and shall remain in full force and effect for a period of 1 (one) year (the “Initial Term”).  After the Initial Term, this Agreement will automatically renew for subsequent 1 (one) year terms for each  successive period unless either Party provides written notice of termination thirty (30) days prior to the expiration of the Initial Term or any renewal term. The Initial Term and any renewal terms are collectively referred to as the “Term”.
   2. Termination for Convenience. Either Party may terminate this Agreement at any time upon provision of a 7 (seven) days prior written notice to the other Party. Company may at any time request an immediate removal of the Advertising Technology from any Publisher Product by way of an e-mail notification.
   3. Termination for Bankruptcy. Either Party may terminate this Agreement in its entirety if the other Party (a) becomes insolvent or is unable to meet its debts as they mature, (b) files a voluntary petition in bankruptcy or seeks reorganization or to effect a plan or other arrangement with creditors, (c) applies for, consents to or acquiesces in the appointment of any receiver or trustee for all or a substantial part of its property, or (d) any such receiver or trustee shall be appointed and shall not be discharged within thirty (30) days after the date of such appointment.
   4. In the event that either party commits a material breach of its obligations hereunder, the other party may, at its option, terminate this Agreement immediately by written notice of termination.
   5. Effect of Termination. Upon the termination of this Agreement for any reason: (i) all rights and licenses granted herein shall terminate immediately including (but not limited to) any access to APIs provided to Publisher; (ii) each Party shall promptly return to the other Party, or destroy and certify the destruction of all Confidential Information to the other Party; (iii) Publisher shall immediately cease any use of the Advertising Technology, the Offers (including any Intellectual Property), Shopperbuzz Data and the Marks; (iv) the following provisions of this Agreement shall survive the termination of this Agreement: 3 (Intellectual Property); 4 (Payments); 5 (Warranties) and for the avoidance of doubt, 5.4 in its entirety;, 6 (Term and Termination); 7 (Confidentiality); and 9 (Disclaimer of Warranty). 
7. Confidential Information and Publicity
   1. Each Party (in this section, the “Receiving Party”) acknowledges that by reason of its relationship under this Agreement, it may have access to Confidential Information and materials concerning the other Party’s (in this section, the “Disclosing Party”) business, plans, customers, code and products that are confidential and may be of substantial value to Company, which value would be impaired if such Confidential Information were disclosed to third parties.
   2. The Receiving Party agrees to maintain all Confidential Information received from the Disclosing Party or relating to the Disclosing Party and received by the Disclosing Party under or in connection with this Agreement, both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the Disclosing Party. The Receiving Party further agrees to use the Confidential Information only for the purpose of performing its obligations under this Agreement.
   3. Upon the termination of this Agreement or at any other time upon the written request by the Disclosing Party, the Receiving Party shall immediately (a) return to the Disclosing Party in a secure manner, all Confidential Information (or such portion requested), including any copies, duplicates, summaries, abstracts or other representations of any such Confidential Information, in whatever form, then in the Receiving Party’s possession or control or (b) permanently delete such Confidential Information from its computers and storage systems and media, and destroy any and all tangible copies thereof. The Receiving Party acknowledges and agrees that due to the unique nature of the Confidential Information, there can be no adequate remedy at law for any breach of the Receiving Party’s obligations hereunder, and that any such breach may allow the Receiving Party or third parties to act unfairly resulting in irreparable harm to the Disclosing Party.
   4. Publisher shall at all times comply with any applicable data protection and privacy laws, rules and regulations in all respects for all jurisdictions in which it operates, including, without limitation, the California Consumer Privacy Act, the General Data Protection Regulation (GDPR), Data Protection Directive 95/46/EC and any relevant national legislation implementing the Data Protection Directive 95/46/EC and the Privacy Act 1988 including but not limited to the National Privacy Principles set out in Schedule 3 of the Privacy Act 1988, Canada’s Anti-Spam CRTC legislation, SC 2010, c23 (and any such amendments to the privacy laws, rules and regulations as applicable) notwithstanding any exemption that may otherwise apply.
   5. Either Party shall not make any public statements or disclosures concerning the terms of this Agreement in any medium except with the prior written consent of the other Party, or as required by law or the rules of any applicable stock exchange.
   6. Without derogating from the generality of the above and as applicable, Publisher must maintain the confidentiality of any Confidential Information at all times, keeping this information in a secure environment and will only disclose such information to such employees on a need-to-know basis which are abide by same strict level of confidentiality obligations. In the event that Publisher suspects that the any such information has been or will be misused due to any act or omission of Publisher (or otherwise), Publisher shall immediately inform Company. 
8. Limitation of Liability and Disclaimer of Warranty
   1. Limitation of Liability. Company and its respective partners and their respective officers, directors, employees or agents, shall not be liable to Publisher, or any person or entity on its behalf, or to any third party, for any special, incidental, consequential, exemplary or punitive damages, including but not limited to damages for lost data, lost profits, loss of goodwill, lost revenue, service interruption, computer damage or system failure or costs of procurement of substitute goods or services arising out of or in connection with this Agreement including but not limited with respect to the Advertising Technology, the Offers, Big Data Platform, Advertiser Partner’s websites or any related technology or service under any theory of liability, including but not limited to contract or tort, and whether or not it was or should have been aware or advised of the possibility of such damage and notwithstanding the failure of essential purpose of any limited remedy stated herein. In any case, Company’s aggregate liability arising out of or with respect to this Agreement shall not exceed the total amounts payable to Publisher under this Agreement in the immediately preceding six (6) months. In the event that the limitation of liability in the immediately preceding sentence is not enforceable, Company and its affiliates’ aggregate liability is in any case limited to USD$15,000. Publisher agrees that these limitations of liability are agreed upon allocations of risk and are reflected in the fees payable under this Agreement.
   2. Disclaimer of Warranty. Except as provided in this Agreement, to the maximum extent allowable by applicable law, Company and its respective affiliates expressly disclaims any and all warranties of any kind or nature, whether express, implied or statutory, relating to the Party’s services under this Agreement including, without limitation, any and all implied warranties of title, non-infringement, merchantability or fitness for a particular purpose. In addition, Company makes no representation or warranty that the Advertising Technology (and the operation of which), its Big Data Platform or a Party’s (or its respective  Partners’) procedures and systems and tracking mechanisms will be uninterrupted or error-free at all times, and no Party will be liable for the consequences of any such interruptions or errors.
   3. The Advertising Technology, Big Data Platform, Offers and any related technology or service are provided “as is” without warranty of any kind and Publisher is solely responsible for its use of the Advertising Technology, Big Data Platform, and the delivery of Offers to End Users. Further, Company does not guarantee the accuracy of content included in and delivered by the Advertising Technology, Big Data Platform, and the Offers and will not assume any liability for End Users (a) purchasing decisions (and the subsequent use of purchased products and services) or (b) third parties’ content, actions or inactions, or Publisher’s interactions with any third parties in connection with the Advertising Technology or Offers. In the event the disclaimer of warranties in this section is not enforceable, Company’s aggregate liability shall not exceed the lesser of: (i) $5,000.00 or (ii) the total amount payable to the publisher under this Agreement in the immediately preceding 6 months.
   4. PUBLISHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE ADVERTISING TECHNOLOGY, BIG DATA PLATFORM, OFFERS AND ANY RELATED PRODUCT OR SERVICE, INCLUDING ALL SERVICES PROVIDED UNDER AND PRODUCTS SUPPORTING THEM, ARE PROVIDED TO PUBLISHER “AS IS” AND WITHOUT ANY WARRANTIES, AND THAT PUBLISHER’S PARTICIPATION IS AT PUBLISHER’S OWN RISK. WITHOUT LIMITING THE FOREGOING, PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT SHOPPERBUZZ AND ITS AFFILIATES: (A) EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE ADVERTISING TECHNOLOGY, BIG DATA PLATFORM, OFFERS AND ANY RELATED PRODUCT OR SERVICE (INCLUDING ALL SERVICES PROVIDED UNDER AND PRODUCTS SUPPORTING THE SAME), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED OR ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (B) DOES NOT WARRANT OR REPRESENT THAT (I) THE ADVERTISING TECHNOLOGY, BIG DATA PLATFORM, OFFERS AND ANY RELATED PRODUCT OR SERVICE WILL MEET PUBLISHER’S REQUIREMENTS, (II) OPERATION OF THE ADVERTISING TECHNOLOGY, BIG DATA PLATFORM, OFFERS AND ANY RELATED PRODUCT OR SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, (III) PUBLISHER’S — USE OF THE ADVERTISING TECHNOLOGY, BIG DATA PLATFORM, OFFERS AND ANY RELATED PRODUCT OR SERVICE WILL GENERATE ANY SALES, OR (IV) THE ADVERTISING TECHNOLOGY, BIG DATA PLATFORM, OFFERS AND ANY RELATED PRODUCT OR SERVICE WILL DELIVER ANY MINIMUM OR SPECIFIC NUMBER OF ADVERTISEMENTS.
      
      
9. General Terms
   1. The Parties to this Agreement are independent contractors. Nothing contained in this Agreement will be construed as creating or implying a joint venture, agency, legal partnership or employment relationship between the Parties or their respective employees and contractors, and neither Party will have the right, power or authority to bind the other or incur any obligation on the other’s behalf without the other’s prior written consent.
   2. Assignment. Publisher shall not assign, transfer or novate this Agreement, nor any right, interest, obligation or benefit under this Agreement, whether by assignment, merger, transfer of assets, sale of stock, bankruptcy, operation of law or otherwise, without the prior written consent of Company and any attempt to do so without such written consent shall be void.  Publisher hereby consents that Company may assign, transfer or novate this Agreement without notice to Publisher. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.
   3. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes and cancels all prior agreements to the subject hereof, if any, between the Parties. No amendment to this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of each Party. Without limiting the foregoing, any Publisher clickwrap or online agreement shall be ineffective to modify the terms of this Agreement, even if assented to by a representative of Company after the execution of this Agreement; any such assent will be deemed a mere technical necessity to access Publisher’s program and services governed by this Agreement and thus will have no binding effect.
   4. Severability. In the event any paragraph or provision of this Agreement is held illegal, void or unenforceable, to any extent, in whole or in part, the balance shall remain in effect, and the Parties shall draw up an arrangement in accordance with the meaning and the object of such paragraph or provision.
   5. Non-Waiver. The failure of either Party to require or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance.
   6. Governing Law; Jurisdiction. This Agreement shall be deemed to have been made in and shall be construed pursuant to the laws of Canada and the Province of Quebec without regard to conflicts of law principles, and any disputes related to this Agreement shall be resolved in the provincial or federal courts located in Montreal, Quebec, Canada, to whose sole and exclusive jurisdiction and venue the parties hereto irrevocably submit.
   7. Notices. All notices shall be in writing and deemed given and received when delivered in person, by facsimile, or by commercial air courier service. Notices shall be addressed to each Party at its address set forth above, or such other address as the recipient may have specified by earlier notice to the sender. Any notice shall operate and be deemed to have been served, if personally delivered or sent by fax on the next following business day, and if by courier, on the fifth following business day.

10. Non-circumvention and Non-soliciation
    1. During the Term of the Agreement and for one (1) year thereafter, neither Publisher nor any of its affiliates, directly or indirectly, either on behalf of itself or any third party, may with respect to any partner that Publisher (or any of its affiliates) knows, reasonably should know, or subsequently learns has a relationship with ShopperBuzz or has had a relationship with the other ShopperBuzz during the Term: (a) take any action, or plan to take any action, with the purpose or effect of circumventing ShopperBuzz relationship with such partner; (b) encourage any partner to reduce or terminate its relationship with ShopperBuzz; (c) otherwise engage, or continue to engage, with such partner to provide products or services competitive with those offered by ShopperBuzz; or (d) take any action with the purpose or effect of aiding any partner to violate any agreement it has or had with ShopperBuzz, including without limitation any exclusivity provisions.
    2. During the term of the Agreement and for two (2) years thereafter, neither Publisher nor any of its Affiliates, directly or indirectly, either on behalf of itself or any third party, may knowingly solicit or engage in any communication with any current employee of ShopperBuzz or its Affiliates, or any individual who was an employee or contractor of ShopperBuzz, with the purpose or effect of inducing such person to terminate his or her employment with ShopperBuzz or its Affiliates or compensating or engaging such person in any way to compete with the products or services of ShopperBuzz. In the event that any provision of this Section 10.2 is held to be in any respect an unreasonable or unenforceable restriction, then such provision shall not be void or voidable, but shall be deemed reformed, or shall be deemed excised from this Agreement, as the case may require, in such jurisdiction and this Agreement shall be construed and enforced to the maximum time, geographic, product or service, or other limitations permitted by applicable law as if such provision had been originally incorporated herein as so modified or restricted, or as if such provision had not been originally incorporated herein, as the case may be.
    3. The Parties agree that any breach of Publisher’s obligations under Section 10.1 and/or 10.2 would result in irreparable injury, and that in the event of any breach or threatened

Exhibit B

Publisher Guidelines

Publisher must at all times comply and ensure that its Publisher Product complies with the following guidelines, if applicable.  These guidelinesmay be updated from time to time and Publisher will be given notice when they are updated.

1. Definitions:
   In addition to the terms defined and used in the Agreement, the following terms shall have their respective definitions:
   
   
   1. “Prohibited Activity” means any illegal activity or any other activity deemed by Company or Advertiser Partner in their sole discretion to be one or more of the following: (a) deceptive or false representations or notifications to End Users in order to initiate artificial clicks on Offers or installation of programs (where applicable) including those of Publisher, without the end user’s awareness, knowledge and consent; (b) using any automated methods to generate clicks, actions or any other engagement with an Offer (including but not limited to: the use of scripts, web crawlers, spiders, bots or other similar non-human programs that result in clicks without the End User’s knowledge or any repeated manual clicks or faking tracking information to stimulate links); (c) using any method or utilizing any practice involving (i) automatic updates to materially change the nature, type or functionality of Publisher’s Publisher Product or any other product; or (ii) automatic/direct/drive by download of any Publisher Product or any program (either as part of any such Publisher Product or in separate); (d) act in a fashion that may harm or dilute Company or Advertiser Partner’s business, reputation or good will; (e) take any action that may harm the security of End User’s device, system, browser or the privacy of the End User, or materially interfere with or disrupt web navigation or browsing by End User; (f) using false data, credit/debit card numbers or other financial information on any signup form, contract, online application, or registration; (g) manipulating any tracking pixels, codes, links, or other tracking information to stimulate leads or inflate commissions; (h) using any form of “cookie stuffing”, “cookie dropping”, “forced clicks” or “cookie sprinkling”; (i) cloaking; (j) black hat SEO; (k) using any misleading, deceptive or fraudulent practices whatsoever with respect to Publisher’s obligations under any agreement (including this Agreement) and its policies, the Advertisement Technology, or the Offers;
   2. “Prohibited Content” means content that Company or Advertiser Partner deem in their sole discretion to be improper, including without limitation: (a) fraudulent, libelous, defamatory, abusive, violent, prejudicial, indecent, obscene, highly explosive subject matter, or any illegal subject matter or activities; (b) material that defames, abuses, or threatens physical harm to others, advocates or facilitates violence of any kind; (c) sexually explicit, pornographic or obscene (whether in text or in graphics) content or adult-oriented or age-restricted products or services without applicable or required age-verification services; (d) any materials that infringe or violate, or assist others to infringe or violate, any copyright, trademark or other Intellectual Property right of any other person or entity; (e) any content related to gambling; (f) “Hate Speech” or any content which contains content that is offensive, profane, threatening, harmful, harassing or discriminatory (whether based on age, race, ethnicity, creed, national origin, religion, gender, marital status, sexual orientation, physical disability or otherwise); (g) any incentive-based website, such as a lottery or sweepstakes site which rewards users for clicking on links; (h) any content that violates any applicable policies or the Guidelines; (i) any type of harmful applications or components which intentionally create or exploit any security vulnerabilities in an end user’s device, including without limitation: viruses, spyware, malware, Trojan horses, spamware, worms or any other malicious code or conduct; (j) any content which is targeted at or designed to appeal to minors; (k) any content that is unlawful or in violation of any law, regulation or directive, or illegal in any fashion according to applicable laws or that is infringing upon third party right; and (l) any content directed or primary appealing to children under the age of 13. 
2. General
   Publisher, Publisher Product (including related technology, functionality, features, components, advertising material of any kind and any other content therein) and anyone acting on Publisher’s behalf shall:
   1. comply at all times with all applicable laws, rules and regulations (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising) and, as applicable, its own terms of service and privacy policy as posted on Publisher’s Site;
   2. Not directly or indirectly, infringe upon any third party right including, without limitation to any Intellectual Property right, rights of privacy or publicity, or any other personal or proprietary right of any person or entity;
   3. Not, directly or indirectly, contain, include or facilitate Prohibited Content or otherwise engage in any Prohibited Activity;
   4. Without derogating from the generality of the above, comply with the following policies and guidelines (as applicable):
      1. Microsoft Malware Protection Center (“MMPC”) guidelines and evaluation criteria for (a) “unwanted software” (available at: https://www.microsoft.com/security/portal/mmpc/shared/objectivecriteria.aspx); and (b) detection of an Adware (available at: http://blogs.technet.com/b/mmpc/archive/2014/04/03/adware-a-new-approach.aspx);  including any updated version of such guidelines.
      2. TRUSTe’s Trusted Download Program Requirements as set forth at: http://www.truste.com/window.php?url=http://download.truste.com/TVarsTf=0T4VQQWQ-275, as may be updated from time to time.
      3. FTC’s guidelines Concerning the Use of Endorsements and Testimonials in Advertising (Specifically, §255.5: Disclosure of Material Connections), available at: https://www.ftc.gov/sites/default/files/documents/one-stops/advertisement-endorsements/091005revisedendorsementguides.pdf. 
3. Transparency
   1. Publisher Product (including the offer of Publisher Product) must, in a reasonable manner, disclose to End Users the following: (a) the name of Publisher Product and the providing entity; (b) the terms and conditions under which such Publisher Product’s services are provided to End Users (either via an end user license agreement (“EULA”) or terms of service (“TOS”) as applicable) including Publisher’s contact details and the use of 3rd party advertisers and delivery of 3rd party offers; (c) if applicable, uninstall instructions; (d) a privacy policy that discloses Publisher’s data collection practices including disclosure of use of third party advertisers that may place cookies and otherwise collect data about such End Users; (e) fully, accurately, clearly and conspicuously disclose the type of information collected in the privacy policy, the method of collection and obtain the End User’s explicit consent to such collection and/or transmission, and shall additionally comply with the principles and disclosures described under Exhibit C.
   2. Any of Publisher Product’s functionalities (including any form of device or system resources consumed) must be fully and clearly disclosed to End User and have End Users’ consent, including but not limited to (a) any changes to the operating system or application or data settings on End User’s device; (b) modifications to the operation or display of other applications;
   3. Neither Publisher nor anyone on its behalf shall mislead or create End User confusion with regard to the source, owner, purpose, functionality or features of Publisher Product. 
4. End User Choices
   1. Publisher Product (including related technology, functionality, features, components, advertising material of any kind and any other content therein) must not, directly or indirectly: (a) download or install any program, feature, functionality or downloadable application or hide, disable, uninstall or otherwise interfere with other applications, browser/operating system functionality, or websites without the End User’s prior informed, express consent; (b) impair the End User’s ability to change any preferences or settings.
   2. Notwithstanding the above, Publisher Product may make changes to End User settings if: (a) End User could reasonably expect such changes to be made in connection with the installation or access to, or use of, Publisher Product; (b) End User consented to such changes; (c) the changes are minor, reasonable and expected.
   3. Publisher must get End User consent for any data collection practice utilized by Publisher or third parties to which publisher provides with access or ability to collect data about End Users. End User must get an opt-out option for any collection of personally identifiable information by Publisher or any 3rd party in connection with Publisher Product (including any feature or components included therein) and Publisher must comply with any and all applicable data privacy and security laws.
   4. Publisher Product must provide End Users with the option and ability to completely and easily uninstall Publisher Product (as applicable). Once Publisher Product is uninstalled, no process, functionality or design elements related to Publisher Product should remain on the End User’s system.

Exhibit C

Data Collection and Privacy

This document outlines Publisher’s general obligations with respect to the disclosure of Publisher’s data collection and retention practices and constitutes an integral part of the Guidelines (as defined under section 1 to Publisher’s Terms and Conditions), whenever applicable. 

Nothing in this document shall derogate from any of Publisher’s obligations to act at all times pursuant to any applicable law, contractual obligations, terms of service, privacy policies and guidelines of third parties and industry best practices with respect to data collection and privacy obligations toward its End Users (including but not limited to obtaining user’s consent and providing users with transparency and choices rights).

General Principles:

1. Publisher shall make available on Publisher Product (including any offer to install Publisher offer, including an installation landing page) a clear, conspicuous and accessible privacy policy to describe:
   1. The type of user data that is being collected by Publisher, the purposes for collection of such data and the manner in which the data is being collected;
   2. Any access to and/or sharing of data with 3rd parties (including any use of 3rd party cookies);
   3. Data retention, processing and transmission;
   4. The use of cookies or other data files;
   5. Data that is being collected for advertising and personalizing purposes;
2. If Publisher collects personally identifiable information (PII) it must provide End User with an opt-out option, and to disclose whether such PII is combined with non-PII.

Publisher must take all reasonable measures required by applicable laws to protect and secure End Users’ data.