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FallFWD, LLC Publisher Agreement

THIS PUBLISHER AGREEMENT (“Agreement”) governs the services provided by and to FallFWD, LLC, with a principal business address of 828 W Grace St, Chicago, IL 60613 (“FALLFWD”). By using the services or providing services to FALLFWD, as provided herein, you (“Publisher,” “You,” “Yours”) agree to be bound by this Agreement.

If You do not agree to the terms and conditions contained herein, You may not use FALLFWD services for any reason or in any manner. FALLFWD reserves the right to make changes to this Agreement at any time. Amended versions of this Agreement will be effective upon posting to https://fallfwd.everflowclient.io/affiliate/signup. Your continued use of FALLFWD services after any such modification shall constitute Your explicit consent to such changes or modifications.

1.	Definitions. The following capitalized terms shall have the definitions set forth below.

“Campaign(s)” shall mean an advertisement made available by FALLFWD for use by the Publisher.

“Creative Materials” shall mean, without limitation, the websites, banners, email creatives, “from” lines, “subject” lines, and call center scripts used in distributing a Campaign.

“Advertiser” shall mean an entity that submits Campaign(s) and Creative Materials to FALLFWD for the purpose of marketing and advertising. 

“Distribution Channel(s)” shall mean, without limitation, email marketing, display advertising, search engine marketing, social media, call centers and other methods of distributing Campaigns.

 “Payable Action(s)” shall mean a third party user’s completion of a certain act related to a Campaign, such as a purchase, registration, phone call, or submission, which shall be indentified in the Campaign Details (defined below) made available on FALLFWD’s  Publisher website.

“CPA Rate(s)” shall mean the monetary compensation per Billable Payable Action (defined below) that FALLFWD agrees to pay the Publisher for every valid Billable Payable Action that is provided to FALLFWD by Publisher.

“Invalid Action(s)” shall mean any fraudulent, incomplete or duplicate Payable Actions and/or Payable Actions generated through unauthorized activity or Distribution Channels.

2.	Campaign Details. FALLFWD shall make Campaign Materials and Campaign details available to Publisher on FALLFWD’s Publisher website (“Website”), including CPA Rates, approved Distribution Channels, approved Creative Materials, and additional terms as provided by Advertiser or FALLFWD (“Campaign Details”). 

3.	Services.  In accordance with the terms of this Agreement and any Campaign Details, Publisher may provide marketing and advertising services to FALLFWD by publishing and promoting FALLFWD’s Campaigns (“Services”). FALLFWD hereby grants Publisher the limited, non-exclusive right to publish, promote, and otherwise use FALLFWD’s Campaigns and Creative Materials, in accordance with the terms of this Agreement and the Campaign Details, in the performance of its Services to generate Payable Actions.  FALLFWD further authorizes Publisher to distribute Campaigns to sub-partners of Publisher, provided that Publisher ensures and requires that all such sub-partners comply with the terms of this Agreement and any applicable Campaign Details.

4.	Payment for Services.  In consideration for its Services, FALLFWD shall pay Publisher for each Billable Payable Action in an amount specified in the Campaign Details.  All payments shall be made on a monthly basis, by check or electronic payment, and shall be paid within 30 days after the last day of the calendar month in which such Billable Payable Actions were generated.  For purposes of this Agreement, a “Billable Payable Action” shall mean a valid Payable Action, as determined by FALLFWD: (i) that is generated in accordance with the terms and conditions of the Campaign Details and this Agreement, including, without limitation, Publisher’s obligations as set forth in Sections 5 and 8, below; (ii) that is tracked and reported by FALLFWD and recorded on the Website; and (iii) for which Advertiser has tendered payment for the same to FALLFWD.  An Invalid Action shall not be considered a Billable Payable Action.  A valid Payable Action for which Advertiser has not yet tendered payment shall only be considered a Billable Payable Action in the month in which Advertiser tenders payment for the same.  FALLFWD shall not be obligated to pay Publisher for Payable Actions that are not, or do not become, Billable Payable Actions. Should payment be made in advance of receiving payment from an Advertiser and the traffic later be deemed to be Invalid, the Publisher will be obligated to return to FALLFWD all payments tendered immediately. If Publisher’s account is terminated for any reason, all previous Billable Payable Actions shall be considered Invalid Actions and will not be billable.

5.	Publisher Obligations. Publisher represents and warrants that it will at all times comply with the following requirements, and understands and agrees that any Payable Actions that are not generated in compliance with this Section 5 shall not be considered Billable Payable Actions:

a.	Publisher shall not modify or alter any Campaign or Creative Materials in any manner without the express written consent and approval from FALLFWD. Publisher will only distribute approved Creative Materials in its advertising of Campaigns through approved Distribution Channels as identified in the Campaign Details and Website. 

b.	Publisher will not use any Distribution Channel that has or promotes any inappropriate content, which includes, but is not limited to, profanity, nudity, sex, pornography, phone sex, escort services, illegal substances, alcohol, tobacco, discrimination, hate crimes, violence, or any other content deemed unsuitable or harmful, in FALLFWD’s discretion, to the reputation of FALLFWD or its Advertisers. 

c.	Publisher may not incentivize consumers or offer any type of points, rewards, cash or prizes for the completion of a Payable Action unless otherwise expressly approved in writing from FALLFWD.

d.	Publisher may not place Creative Materials on blank web pages, web pages with no content, websites under construction or websites that do not own the domain they are under, including, but not limited to Craigslist. 

e.	Publisher shall not engage in any deceptive forms of advertising including, but not limited to, sending an email to an individual falsely claiming to be an established or legitimate enterprise or person, the use of advertising with the intent to scam or defraud the user, the use of invisible methods to generate clicks or transactions that are not initiated by the affirmative action of the user, phishing, adware, spyware, robots, IP spoofing, iframes, or any other deceptive activity. 

6.	FALLFWD’s Obligations. FALLFWD shall make reasonable efforts to collect payment from delinquent Advertisers for all Payable Actions.

7.	Consumer Data.  FALLFWD and its Advertisers shall retain sole and exclusive ownership of and rights to all data, including all consumer data, that is generated or collected as a result of the Publisher’s publication and promotion of Campaigns (“Data”). FALLFWD shall have the sole right to market and re-market to the persons and/or Data generated by Publisher pursuant to this Agreement, without further obligation to Publisher.  Publisher shall not use the Data without first obtaining FALLFWD’s written consent.

8.	Compliance. Publisher represents and warrants that it will comply with all federal, state and local laws at all times during its performing Services for FALLFWD and its Advertisers, and agrees that any Payable Actions that are not generated in compliance with this Section 8 shall not be considered Billable Payable Actions. 

a.	All FALLFWD Campaigns distributed by Publisher through email shall be and remain in strict compliance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”), and any amendments or modifications thereto. Publisher shall, as its sole responsibility, remain knowledgeable of and compliant with all provisions of CAN-SPAM.

b.	Publisher agrees that before distributing any FALLFWD Campaign by email, it will download the most recent suppression file(s) associated with such Campaign and will remove all email addresses and domains that are found in such files from the database(s) utilized by Publisher for the transmission of emails associated with such Campaign. 
 
c.	Publisher shall download and remove all domains located on the FCC’s wireless domain list, located at http://fcc.gov/cgb/policy/DomainNameDownload.html, from all data used in the distribution of FALLFWD Campaigns. 

9.	Payment Information. Publisher shall provide FALLFWD with all information reasonably necessary for FALLFWD to evaluate Publisher and for FALLFWD to tender payments to Publisher for Billable Payable Actions, including, without limitation, a valid name, address, Employer Identification Number or Taxpayer Identification Number, and IRS Form W-9.  Publisher will ratify or update, as necessary, such information upon FALLFWD’s request.

10.	Term and Termination. The term of this Agreement shall commence upon any action by Publisher to download, access, use, publish, distribute, or promote any Campaign or Creative Materials and shall continue for the duration of any such Campaign, as set forth in the Campaign Details, or until terminated as provided herein.  Either party may terminate this Agreement without cause upon seven days written notice to the other party.  FALLFWD may immediately terminate this Agreement for cause at any time upon FALLFWD’s determination, in its sole and absolute discretion, that Publisher has violated any term or provision of this Agreement or the Campaign Details.

11.	Confidentiality. When used in this Agreement, the term “Confidential Information” shall mean the terms of this Agreement, and any and all information regarding any Campaign, Campaign Details and all other proprietary information, data, trade secrets, and business information of FALLFWD.  Publisher hereby agrees that it will not use or disclose FALLFWD’s Confidential Information for any purpose or purposes except for Publisher’s provision of Services to FALLFWD.  Publisher shall not disclose any Confidential Information to any employee or agent of Publisher except as is necessary for Publisher to provide such Services and, in all events, shall only disclose Confidential Information to such employees or agents who are bound by confidentiality obligations at least as strict as the obligations contained herein.

12.	Indemnification. Publisher shall indemnify and hold FALLFWD harmless for any injury, damages, claims, loss, and expenses, including reasonable attorney fees, arising out of any breach of this Agreement or Campaign Details. 
13.	Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made in that state, without resort to the rules governing conflict of laws.

14.	Severability.  In the event any one or more of the provisions contained in this Agreement shall be invalid, illegal, or unenforceable in any respect, the validity, legality, or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.

15.	Assignment and Succession.  Except as expressly set forth herein, this Agreement may not be assigned by either party without the prior written consent of the other and shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns.

16.	Section and Paragraph Headings.  The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

17.	Entire Agreement, Modifications.  This Agreement represents the entire understanding and agreement of the parties hereto with respect to the subject matter hereof, supersedes all prior negotiations between such parties, and cannot be amended, supplemented, or changed orally but only by an agreement in writing signed by the party or parties against whom enforcement is sought and making specific reference to this Agreement.

18.	Absence of Third Party Beneficiary Rights.  No provision of this Agreement is intended, nor will be interpreted, to provide or to create any third party beneficiary rights or any other rights of any kind in any client, customer, affiliate, shareholder, employee, partner of any party hereto or any other person or entity.
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