FlowerShop Media Master Services Agreement

FlowerShop Media Inc. (“FSM”), a Delaware corporation shall provide digital advertising and/or data services (the “Services”) to a Client via an online application and/or platform operated by FSM (the “Platform”).

This agreement sets out the terms and conditions on which you, as an advertiser “Advertiser” may access and use the Services to purchase advertising inventory, create advertisements and/or conduct Campaigns via the Platform.

1. Services.

1.1 FSM shall provide digital advertising and/or data services (the “Services”) to Client via an online application and/or platform operated by FSM (the “Platform”). The Services and related pricing are set forth in the schedules (the “Schedules”) to these general terms (the “General Terms”). The Schedules may be attached to this Agreement or provided on the form of a subsequent Campaign Insertion Order (“IO”). Together the General Terms and Schedules and all subsequent agreed Schedules attached to this Agreement constitute an agreement (the “Agreement”) between FSM and Client.

1.2 IAB/AAAA Terms. FSM Services are subject to the Definitions and Sections II, IV, V, VI, IX, X(a) &(b), XI, XII and XIV of the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less Version 3.0 (“IAB Standard Terms”) (which are incorporated herein by reference), except as modified herein, and shall be binding on Advertiser.  For the purpose of clarity, (a) FSM, when applicable, will use good faith efforts to include the relevant provisions of the IAB Standard Terms noted above in its agreements with Publishers but does not guarantee such terms will be accepted by Publishers, and (b) in the event of any conflict between these Platform Terms and the IAB Standard Terms, the Platform Terms shall control. Any capitalized terms used but not defined below shall have the meaning ascribed to them in the IAB Standard Terms.  These Platform Terms together with those provisions of the IAB Standard Terms incorporated herein are sometimes referred to together as the “Agreement.                                                       

1.3 The Services may allow Client to plan, select, traffic, upload, optimize and report advertising campaigns (“Ad Campaigns”) using the Client’s creatives in a variety of formats, including, without limitation, text-based, graphical, interactive, rich media, social, e-mail or video formats (individually or collectively, “Creatives”).

1.4 FSM shall provide user support for the Platform and the Services as set forth in the applicable Schedules. Nothing herein or in any warranty shall obligate FSM to deliver support services in excess of what is described in the Schedules.

1.5 Client shall cooperate with FSM as reasonably required for FSM to perform the Services in a timely and professional manner in accordance with applicable professional manner.

2. Payment.

2.1 Terms. Payments to FSM are due as listed in each applicable Schedule. Late payments shall accrue interest at a rate equal to the lesser of: (a) one and one-half percent (1.5%) per month; or (b) the highest rate allowed by law. FSM may, in its sole discretion and upon written notice to Client, suspend delivery of any Ad Campaign or access to the Services or the Platform if an invoice is not paid when due. If Client’s credit is or becomes impaired, FSM may require payment in advance and may suspend delivery of any Ad Campaign or access to the Services or the Platform until it has received such advance payment.

2.2 Calculations. During the Term of this Agreement, Client agrees to pay FSM based on the pricing specified in the Schedules. Client will also reimburse FSM for any out-of-pocket expenses incurred by FSM that are pre-approved in writing by Client. FSM will invoice Client for the amounts due to FSM (the “Fees”). As between FSM and Client, FSM’s Platform will be the system of record in determining the number of impressions, clicks, actions, or other applicable metric, delivered, shown, produced, clicked on, or viewed, and as between FSM and Client, FSM will be solely responsible for determining charges to Client hereunder.

2.3 Discrepancies. If there is a discrepancy of more than 15% between FSM’s metric and Client’s third-party ad server metric or a publisher’s ad server metric, FSM will use commercially reasonable efforts to reconcile the discrepancy.

2.4 Preliminary Reports. Numbers provided prior to final invoicing via the Platform or otherwise are preliminary and subject to adjustment.

2.5 Disputes. On receipt of invoice Client shall have seven days to query or dispute such invoice after which time the invoice shall be deemed to be accepted by Client and no further query or dispute may be raised by Client. In the event of any good faith dispute regarding a portion of an invoice, Client shall pay the undisputed Fees when due.

2.6 Currency. The Fees are payable in United States dollars (“Dollars”) unless otherwise specified.

2.7 Taxes. The Fees are exclusive of any Taxes. “Taxes” means any sales, use, transfer, privilege, excise, VAT, GST, consumption tax, or other similar taxes and duties, whether foreign, national, state or local, however designated, present or future, that are levied or imposed by reason of the performance by FSM or Client under this Agreement, excluding taxes on FSM’s net income. Client will be responsible for paying, at the same time it pays the Fees, any Taxes imposed on the Fees. Client will be responsible for timely paying in full all other Taxes. If Client is required to make any deduction, withholding or payment on account of any Taxes in any jurisdiction in respect of any amounts payable hereunder by Client to FSM, such amounts will be increased to the extent necessary to ensure that after the making of such deduction, withholding or payment, FSM receives when due and retains (free from any liability in respect of any such deduction, withholding or payment) an amount equal to what would have been received and retained had no such deduction, withholding or payment been required or made.

2.8 Prepayments. Prepayments are not refundable unless Client terminates pursuant to section 7.2 or FSM terminates pursuant to section 7.4.

3. Ownership.

3.1 FSM acknowledges it does not have any ownership rights or ownership interest in the Creatives or in any other materials provided by Client to FSM under this Agreement as well as Client’s trademarks, copyrights, patents and all other intellectual property (collectively with the Creatives, “Client Intellectual Property”). FSM agrees that the use of Client Intellectual Property on the Platform inures to the benefit of Client, including any goodwill therein, and that FSM will not acquire any ownership or rights in Client Intellectual Property as a result of this Agreement.

3.2 Client acknowledges that it does not have any ownership rights or ownership interest in FSM’s know-how, processes and methodologies; the Platform; FSM’s pre-existing and independently developed materials; and FSM’s trademarks, copyrights, patents and all other intellectual property (collectively, “FSM Intellectual Property”). All modifications, upgrades, derivative works and enhancements, including without limitation any Client suggestions for new features or functionality of the Platform, are the sole property of FSM. Client agrees that its use, if any, of FSM Intellectual Property inures to the benefit of FSM, including any goodwill therein, and that Client will not acquire any ownership or rights in FSM Intellectual Property as a result of this Agreement.

3.3 FSM hereby grants to Client a non-exclusive, non-transferable, non-sublicensable right and license during the Term to access and use the Platform solely for the purpose of planning, selecting, trafficking, uploading, optimizing and reporting Ad Campaigns or gaining insights through brand intelligence in accordance with the terms and conditions of this Agreement. Client is responsible for all use of the Platform through Client’s credentials. Except as set forth in this Agreement, Client agrees not to (a) use or authorize use of the Platform for any purpose not specified in this Agreement; (b) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the Platform or access thereto; (c) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the Platform or any portion thereof; (d) test the Platform for vulnerabilities or service limitations; (e) use the Platform for the purposes of developing a product, program or service that will be owned by a third party or that would compete with FSM’s products or services; (f) use the Platform in any way which adversely affects FSM or other third parties; (g) access data of any third-party without authorization; (h) circumvent any privacy features (e.g., an opt-out) that are part of the Platform; (i) seek, in a proceeding filed during the Term, an injunction on any part of the Platform based on patent infringement or (j) attempt to do any of the foregoing

3.4 FSM is not obligated to retain Client’s data after the termination of this Agreement.

4. Warranties.

4.1 FSM represents and warrants to Client that:

4.1.1 FSM has all necessary right and authority to enter into this Agreement and provide the Platform to Client as required by this Agreement;

4.1.2 FSM’s performance of the Services shall not knowingly violate any applicable law, rule, regulation or third party privacy or intellectual property rights in any material respect; and

4.1.3 FSM and its personnel are in compliance and will at all times remain in compliance with the Singapore Prevention of Corruption Act and anti-corruption provisions of the Singapore Penal Code, the UK Bribery Act, the US Foreign Corrupt Practices Act and the anti-corruption provisions of the Australia Criminal Code Act (collectively, the “Anti-Corruption Laws”), as applicable, during the Term.

4.2 Client represents and warrants to FSM that:

4.2.1 Client has all necessary right and authority to enter into this Agreement and has all licenses and authorizations necessary for Client’s use of the Platform;

4.2.2 Client’s performance under this Agreement and Client’s activities in connection with the Platform shall not violate any applicable law, rule, regulation or third party privacy or intellectual property rights in any material respect;

4.2.3 Client has sufficient substantiation for all claims made and shall fulfill all commitments set out in the Creatives; and

4.2.4 Client owns or otherwise has lawful right to use all Creatives and other materials provided by Client to FSM under this Agreement and the Creatives and any other materials provided by Client to FSM under this Agreement shall not: infringe, misappropriate or otherwise violate any third party’s intellectual property rights; breach any duty toward, or rights of, any third party, including rights of publicity or privacy; be false, deceptive, misleading, unethical, defamatory, libelous, threatening, abusive, tortious, defamatory, vulgar, obscene, hateful or objectionable (racially, ethnically or otherwise); promote activities that are unlawful or harmful; load computer programs onto a consumer computer or device without express consent; contain malware, viruses, or other potentially destructive computer programs and security threats; auto-redirect, auto-play audio or animate for longer than 15 seconds (US) or 30 seconds (elsewhere); or shake or flash excessively or fail to function; and

4.2.5 Client and its personnel are in compliance and will at all times remain in compliance with the Anti-Corruption Laws, as applicable, during the Term.

4.3 THE WARRANTIES IN THIS AGREEMENT (AND IN THE SCHEDULES) ARE THE PARTIES’ ONLY WARRANTIES CONCERNING THEIR RESPECTIVE OBLIGATIONS HEREUNDER, AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGMENT OR OTHERWISE.

5. Compliance.

5.1  FSM shall adhere to:

5.1.1 the Network Advertising Initiative’s Code of Conduct (if applicable) and the Digital Advertising Alliance’s Self-Regulatory Program for Online Behavioral Advertising (if Client is delivering an Ad Campaign to the United States);

5.1.2 the Digital Advertising Alliance of Canada’s Canadian Self-Regulatory Principles for Online Behavioural Advertising (if Client is delivering an Ad Campaign to Canada); and

5.1.3 the IAB Europe EU Framework for Online Behavioural Advertising (if Client is delivering an Ad Campaign to Europe). Furthermore FSM will disclose in its privacy policy any use of non-cookie technology to collect data across unaffiliated websites. All these requirements are the “Self Regulatory Programs.”

5.2 If Client receives information about end-users from the Services, Client shall not (a) attempt to merge such information with personally identifiable information held by Client for interest-based advertising purposes or (b) attempt to identify the individuals to whom the information pertains for interest-based advertising purposes; and

5.3 Client shall adhere to the Self Regulatory Programs.

6. Term. The term of this Agreement shall begin on the Effective Date, and shall continue for an Initial Period, and will renew for successive Renewal Periods (the “Term”). Either party may terminate this Agreement pursuant to Section 7 hereof.

7. Termination.

7.1 Either party may terminate this Agreement (including all Schedules and all insertion orders issued thereunder) effective at the end of the then-current Initial Period or Renewal Period (the “Current Period”), at its convenience and without any breach by the other party, by providing written notice to the other party at least 30 days before the end of the Current Period.

7. 2 Either party may terminate this Agreement and all Schedules for material breach of any Schedule upon giving the other party at least 15 days prior written notice specifically identifying the alleged breach, provided that the breaching party does not cure such breach within the 15-day notice period. During this notice period the non-breaching party shall have the right to suspend its performance under this Agreement and, specifically and without limitation, FSM may suspend delivery of any Ad Campaign or access to the Services or the Platform.

7.3 Either party may terminate this Agreement immediately by written notice if the other party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding that is not dismissed within sixty (60) days of the date of filing, is subject to the appointment of a receiver, or admits in writing its inability to pay its debts as they become due.

7.4 FSM may terminate this Agreement pursuant to section 8.5.

7.5 Upon termination of this Agreement by either party, each party shall promptly return, as is commercially feasible, at the written request of the other party, all related data, materials and other property of the other held by it that has been so requested, provided that, subject to the confidentiality restrictions contained in Section 10, the delivering party may retain solely for record keeping purposes copies of the materials returned to the requesting party.

8. Indemnification.

8.1 FSM hereby agrees to indemnify, hold harmless and defend Client from and against all third-party claims, demands, actions, losses, damages or expenses (including reasonable attorney’s fees and court costs related to such defense) (collectively “Liabilities”) asserted by any third party where such Liabilities arise out of or result from: (1) fraudulent misconduct of FSM in connection with its performance under this Agreement; (2) bodily injury or death of any person directly caused by the negligence of FSM in connection with its performance under this Agreement; or (3) any breach by FSM or its Affiliates, employees, agents or contractors of Sections 3 or 10.

8.2 Client hereby agrees to indemnify, hold harmless and defend FSM and its Affiliates, and any member, director, officer, employee or agent thereof, against all Liabilities asserted by any third party where such Liabilities arise out of or result from: (1) fraudulent misconduct of Client in connection with its performance under this Agreement; (2) bodily injury or death of any person directly caused by the negligence of Client in connection with its performance under this Agreement; (3) any breach by Client or its Affiliates, employees, agents or contractors of Sections 3, 4.2.4 or 10; or (4) any claim that Client Intellectual Property infringes a copyright, patent, trade secret, trademark or any other proprietary right of a third party.

8.3 The indemnified party shall notify the indemnifying party promptly in writing of any such claim, and the indemnifying party shall have the sole control of the defense and all related settlement negotiations (unless any settlement involves anything other than the payment of money exclusively by the indemnifying party). The indemnified party shall provide the indemnifying party with reasonably requested assistance, information, and authority to perform the above. The indemnified party can participate in the defense with counsel of its choice at its own expense.

8.4 For the purposes of this Agreement, “Affiliate” is defined as any legal entity that is owned by a party or that owns a party or that is under common control with a party. “Control” or “own” mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.

8.5 Notwithstanding any other provision in this Agreement, Client’s sole remedy for any claim that FSM Intellectual Property infringes a copyright, patent, trademark or any other proprietary right of a third party (an “FSM IP Claim”) shall be that FSM will in its sole discretion: obtain the right for Client to continue to use the Services, update the Platform or Services to avoid infringement, or if none of the prior options are obtainable on commercially reasonable terms, terminate this Agreement upon notice to Client without further liability or obligation hereunder. FSM will not indemnify FSM IP Claims based on any modification or derivative of the FSM Intellectual Property or any combination of the FSM Intellectual Property with any technology, software or hardware not supplied or recommended by FSM, if such alleged infringement would be avoided by the absence of such combination.

9. Limitation of Liability.

9.1 Except for damages arising pursuant to Sections 8 and 10 hereof, each party’s liability (whether in contract, tort, negligence, strict liability, by statute, or otherwise) to the other party or to any third party concerning performance or non-performance or otherwise related to this Agreement shall in the aggregate be limited to direct and actual damages not to exceed the Fees received by FSM, excluding fees for media or third-party data, under this Agreement for the portion of the Services giving rise to such claim during the twelve (12) months immediately preceding the last event giving rise to the claim.

9.2 EXCEPT IN THE EVENT OF A PARTY’S INDEMNITY OBLIGATIONS IN SECTION 8 OR A BREACH OF SECTION 10 HEREOF, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES OR EXPENSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR OTHER ECONOMIC LOSS, LOST REIMBURSEMENTS, LOST DATA, OR LOST SAVINGS), EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.

10. Confidential Information.

10.1 Each party agrees that the terms of this Agreement and any information that is identified as confidential, or that ought reasonably to be regarded as confidential (including, but not limited to business activities, financial information and results, pricing, contract terms, products, research, processes, methodologies, trade secrets, customers and technical knowledge disclosed by the other party in any form or medium (collectively “Confidential Information”) shall not, without the disclosing party’s authorization, be disclosed to any other party or used by the receiving party except as contemplated by this Agreement. The recipient shall protect the confidentiality of the Confidential Information using at least the same measures it takes to protect its own confidential information of like kind, so long as not less than reasonable care, and shall restrict access to Confidential Information to its employees on a need to know basis for the purposes of this Agreement.

10.2 Nothing in this Agreement shall restrict either party’s use of information: (a) that is or becomes publicly available through no breach of this Agreement; (b) that is independently developed by it without use of or reference to the disclosing party’s Confidential Information; (c) previously known to it without obligation of confidence; or (d) acquired by it from a third party that is not under an obligation of confidence with respect to such information. In the event either party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information, the recipient shall promptly notify the other party of such receipt and may, thereafter, comply with such subpoena or process to the extent permitted by law; provided that the recipient shall disclose only such Confidential Information as is absolutely necessary and shall exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information that is being so disclosed. Confidential Information shall be returned or destroyed (provided that such destruction is certified in writing by an authorized representative of the disclosing party) upon the earlier of: (i) termination or expiration of this Agreement; or (ii) the disclosing party’s written request, which destruction shall include without limitation the complete erasure of any electronic file, folder, database or other electronic repository from all computer processing units on which the Confidential Information had been placed or stored

10.3 This section shall survive expiration and/or termination of this Agreement for three years except for trade secrets, which shall be protected so long as considered a trade secret under applicable law.

11. Beta Features.

11.1 FSM will have no liability under the Agreement (including any indemnification obligations) arising out of or related to Client’s use of any Beta Features. A “Beta Feature” is a Platform feature or Service that is expressly identified as “Beta,” “Alpha,” “Experimental” or “Pre-Release” or that is otherwise expressly identified as unsupported. Any use of Beta Features will be solely at Client’s own risk and may be subject to additional requirements as specified by FSM. FSM is not obligated to provide support for Beta Features, and FSM may cease providing Beta Features as part of the Platform. FSM may use and disclose any data derived from Client’s use of a Beta Feature for any purpose without Client’s consent as long as FSM does not disclose results to third parties in such a manner as would identify or reasonably be expected to identify Client or any end users. Information regarding Beta Features is considered Confidential Information.

12. Relationship of Parties.

12.1 If Client is an agency (or otherwise is running Ad Campaigns for a third-party advertiser, such as in the case of a managed service provider), Client is liable to FSM for the compliance of its advertisers with the representations, warranties and undertakings made by Client in this Agreement. Client will be liable for any breach caused by the actions or inactions of such a third-party advertiser whether or not Client has knowledge of such actions or inactions.

12.2 The parties agree that FSM’s relationship with Client is that of an independent contractor and nothing in this Agreement shall be construed as creating a partnership, joint venture, pooling arrangement, partnership, employer-employee relationship, or formal business organization of any kind.

12. 3 Neither party shall have authority to bind the other except to the extent expressly authorized herein. This Agreement shall relate only to the Services specified in this Agreement, and shall not otherwise limit the rights of either party to subcontract, promote, market, sell, lease, license, or otherwise dispose of its products or services.

13. Precedence. In the event of a conflict in this Agreement among the Pricing Sheet, the applicable Schedule and the General Terms, the Pricing Sheet shall supersede the Schedule which shall supersede the General Terms. In the event of conflict between the Agreement and any insertion order issued thereunder, the Agreement shall supersede unless the conflict is specifically identified in the insertion order.

14. Assignment. Neither party may assign or transfer its interest hereunder without the prior written consent of the other party, except pursuant to a merger, acquisition, or sale of all or substantially all of its assets, such consent not to be unreasonably withheld or delayed. The Agreement will be binding upon and inure to the benefit of the parties’ permitted successors and assigns.

15. Publicity. Neither party shall make any public statement regarding this Agreement without the written consent of the other party. FSM and Client intend to collaborate on one quarterly public communication, which may be in the form of a customer reference, blog post, case study, testimonial video, or public speaking event, and with the other party’s consent, each party may include the other party’s name and logo in its list of reference accounts. In any case, the parties will respect each other’s marketing and branding guidelines.

16. Severability. In the event that any term or provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

17. Entire Agreement. This Agreement, including its Schedules, constitutes the entire agreement of the parties and supersedes all prior and contemporaneous representations, proposals, discussions, and communications, whether oral or in writing. The parties may execute this Agreement in several counterparts, all of which together constitute one agreement between the parties.

18. Equitable Relief. The parties acknowledge that any breach of Sections 3 or 10 will result in irrevocable harm to the other party and that the remedies at law for such breach may not adequately compensate the non-breaching party for damages suffered. Accordingly, the parties agree that in the event of such breach, the non-breaching party will be entitled to seek injunctive relief or such other equitable remedy as a court of competent jurisdiction may provide. Nothing contained herein will be construed to limit the non-breaching party’s right to any remedies at law, including the recovery of damages for breach of this Agreement.

19. Governing Law and Jurisdiction.

19.1 This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of New York, without regard to the conflict of laws provisions thereof. The parties hereby submit to the personal and subject matter jurisdiction of the state and federal courts located in New York, which shall be the exclusive venue for any such dispute.

19.2 In the event that litigation is brought by either party with regard to any dispute regarding this Agreement, the prevailing party shall be entitled to reimbursement of all costs of collection and enforcement, including court costs and reasonable attorneys’ fees.

20. Survival. Sections 2 – 4, 7.5 and 8 – 21 and 24 shall survive the expiration or earlier termination of this Agreement.

21. Third-Party Beneficiaries. Unless specifically stated otherwise in this Agreement, the parties do not intend any third party to be third-party beneficiaries or confer any rights or benefits on any third party.

22. Force Majeure. If the performance of this Agreement by either party, or of any obligation under this Agreement, other than the payment of the Fees, is prevented, restricted or interfered with by reason of war, revolution, civil riot, disaster, acts of public enemies, blockade or embargo, strikes, any law, order, proclamation, or any other act whatsoever, whether similar or dissimilar to those referred to in this section, which is beyond the reasonable control of the party affected (“Force Majeure Event”), such party shall, upon giving prior written notice to the other party, be excused from such performance to the extent such performance is prevented by a Force Majeure Event, provided that the party so affected shall use all commercially reasonable efforts to avoid or remove such causes of non-performances, and shall continue performance whenever such causes are removed.

23. Modifications, Waiver. This Agreement shall not be amended or modified, nor shall any waiver of any right hereunder be effective unless set forth in a document executed by duly authorized representatives of both FSM and Client. The waiver of any breach of any term, covenant or condition herein contained, or the failure of either party to seek redress for the violation of, or to insist upon the strict performance of, any covenant or condition of this Agreement shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same.

24. Notices. Any notice or other communication under this Agreement shall be in writing and shall be effective upon the earlier of actual receipt, five (5) days following deposit into the United States mail (certified mail, return receipt requested), the next business day following deposit with a nationally recognized overnight courier service, or the same day following transmission of a legible facsimile copy or email during regular business hours (with the original thereof posted first-class mail, postage prepaid, within two (2) business days thereafter), in each case with any delivery fees pre-paid and addressed to the party at the address set forth on the first page of this Agreement, or such other address provided to the other party in writing.

25. COUNTERPARTS.  This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.

Advertiser indicates its agreement with the above by checking the box to accept presented at the time Advertiser logs-in to the FlowerShop Media Marketplace on the Adslot Platform for the first time only.

ADDENDUM FOR CANNABIS AND CBD ADVERTISERS

FlowerShop Media Inc., its affiliates and their respective publications and Publishers in all media (collectively, “FSM” or “Publisher”) only accept advertisements for (1) cannabis-related businesses that operate in jurisdictions in the United States in which medical or recreational cannabis may be legally sold, and are fully licensed under and in compliance with such applicable state law(s), and (2) United States based, hemp-derived CBD manufacturers in full compliance with applicable state laws(s).

The Company, on behalf of itself and its affiliates and each of their respective brands submitting Advertising Materials (as defined below) to the Publisher, or requesting that Publisher assist in the creation of custom content Advertising Materials (collectively, the “Advertiser”) acknowledges that cannabis remains federally unlawful under Schedule 1 of the U.S. Controlled Substances Act (CSA) and that its conduct in manufacturing and/or the offering for sale cannabis products of any kind constitutes a violation of such laws. To the extent Advertiser is promoting products containing hemp-derived CBD, Advertiser acknowledges that the FDA has not authorized the sale or marketing of products containing cannabis or cannabis-derived compounds, including CBD derived from hemp. Advertiser adopts all risk associated with its advertisement of cannabis and/or CBD products and shall not hold Publisher responsible for any outcomes related to any kind of enforcement against Advertiser related to such violation of law.

By doing business with Publisher, the Advertiser acknowledges, represents and warrants that:

  1. With respect to the subject-matter of the Advertising Materials:
    1. For medical or recreational cannabis and cannabis products and services: Advertiser operates its cannabis business in one or more states in the United States in which medical or recreational cannabis may be legally sold and in which a strong and effective regulatory scheme has been established to authorize the production,  distribution, and possession of medical or recreational cannabis, Advertiser’s business complies with the laws of each state in which it operates, including any applicable registration and licensing requirements, and Advertiser is advertising products or services which Advertiser is licensed by the respective state(s) to sell.
    1. For hemp-derived CBD products:  Advertiser is a hemp cultivator operating in a state where hemp may be legally grown or has obtained its CBD/hemp from a hemp cultivator or manufacturer operating in a state or a country outside of the United States where hemp may be legally grown or manufactured.  The hemp-derived CBD products offered by Advertiser and included in the Advertising Materials are not intended for ingestion by humans or animals. Advertiser’s business complies with the laws of each state in which it operates, including any applicable registration and licensing requirements, or the CBD/hemp obtained by Advertiser complies with any applicable state’s laws, including any applicable business registration and licensing requirements. Advertiser only sells its CBD in states where it is legal to do so, and is in compliance with those states’ laws.
    1. For cannabis-related services that do not involve the sale or provision of medical or recreational cannabis: Advertiser is not offering or selling any cannabis, cannabis products, or identifying cannabis retailers but instead is offering information.
  • Advertiser’s business is in good standing in each state in which Advertiser operates and Advertiser is not currently the subject of any federal, state, or local regulatory enforcement action or the target of any criminal investigation. If Advertiser has been the subject of such enforcement or investigation in the past, Advertiser has disclosed this fact to Publisher.
  • The Advertising Materials comply with the law(s) of the state(s) in which Advertiser operates, including all requirements and restrictions the state places on cannabis- or hemp-related advertising, as well as all other general federal and state unfair and deceptive acts, practices, laws, and such advertisements do not include claims or language that cannabis or hemp-derived CBD may provide a health benefit to humans or animals.
  • Advertiser does not accept online orders for cannabis or cannabis-containing products in jurisdictions where Advertiser’s products may not be legally sold or where Advertiser’s products may not be legally sold or ordered online.
  • The content of the Advertising Materials does not appeal to children or include any child-friendly elements, coloring, designs, shapes, or themes, or any images of children or anyone who appears to be under 21 years of age. This includes use of toys, movie characters, cartoon characters, or anything designed to be attractive to anyone under 21. Advertiser will not attempt to use Publisher’s services to target advertisements at people under the age of 21.
  • Advertising Materials do not:
    • Depict cannabis or alcohol consumption or overconsumption
    • Contain any statement concerning a brand or product that is inconsistent with any statement on the label of the brand or product;
    • Make any claims regarding the purported health or wellness benefits of hemp, CBD, or cannabis;
    • Closely resemble non-cannabis brands, products, or advertisements; or
    • Contain false or misleading claims of any other nature, for example regarding Advertiser’s business practices or the source of ingredients.

Advertiser further agrees that it will be responsible and liable for reviewing and ensuring that all aspects of Advertiser’s media campaign, including but not limited to any advertising or marketing materials submitted to run in Publisher website and digital properties, and in other Publisher publications and outlets in any and all media (collectively, the “Publisher Outlets”), or for display or distribution at any Publisher events, as well as e-commerce/affiliate content and links and custom content created by or on behalf of Advertiser for distribution in the Publisher Outlets (collectively, “Affiliate/Custom Content”) (regardless of whether such Affiliate/Custom Content is created, supplied or edited by Publisher or Advertiser, or combined by Publisher with other materials supplied by Advertiser) (all of the foregoing, collectively, the “Advertising Materials”) (i) do not infringe upon the intellectual property or privacy rights or any other rights of any person or entity, (ii) do not defame or disparage any person or entity, (iii) are adequately substantiated and not deceptive, false or misleading, (iv) do not include claims that cannabis or hemp-derived CBD may provide a health benefit to humans or animals, and (iv) otherwise comply with all applicable laws, rules and regulations, including without limitation, laws, rules and regulations relating to the products being advertised, and all advertising and promotion thereof, including without limitation any Federal Trade Commission regulations pertaining to custom content.  Notwithstanding the foregoing, it shall be Publisher’s responsibility to ensure that any element of the Advertising Materials supplied by Publisher do not infringe any third party copyright (the “Publisher Copyright Obligation”).

Except as otherwise set forth in an agreement signed by both Publisher, on one hand, and Advertiser or its Agency, on the other hand, Advertiser acknowledges and agrees that Publisher’s sole role in the creation of any custom content for Advertiser or Agency shall be to provide design services using assets and text supplied, at no cost, by Advertiser or Agency, as well as light copy editing/proofreading (the “Services”).  Publisher shall provide the results of the Services to Advertiser or its Agency for their approval prior to publication (such results shall be deemed Advertising Materials hereunder). Advertiser expressly agrees that notwithstanding any Services provided by Publisher, and except with respect to the Publisher Copyright Obligations only, it shall be Advertiser’s sole responsibility at its own expense to review all Advertising Materials and ensure that such Advertising Materials comply with the terms set forth herein.

Advertiser shall ensure that: (i) all Advertising Materials for cannabis products, including paraphernalia used for same, include a disclaimer as follows: “Not available for sale except where permitted by applicable law”; and (ii) all Advertising Materials for cannabis include the advertiser’s state cannabis license number, where applicable.  For all products, the following disclaimer shall appear: “This advertisement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease.”

Unless specifically agreed, Advertiser agrees that all Advertising Materials submitted for digital publication will run without restriction of any kind. In those cases where Publisher has agreed in an express signed writing to geo-target or age-restrict any Advertising Materials, or to include the Advertising Materials in a limited distribution print run (all of the foregoing, collectively, “Distribution Limitations”), Advertiser acknowledges and agrees that Publisher shall make commercially reasonable efforts to do so, provided that Publisher makes no representations or warranties, and expressly disclaims, that such Distribution Limitations will be error free, complete or accurate, or that such Distribution Limitations meet the requirements of any law, rule or regulation to which Advertiser, its products or services may be subject. Advertiser acknowledges and agrees and assumes all liability and risk relating to, and waives any claims against Publisher, its affiliates and each of their respective employees, officers, directors, agents and vendors arising from or relating to any failure or effort by Publisher to engage in Distribution Limitations or to limit the scope of the audience or viewers of any advertisements in any manner.

Advertiser agrees to indemnify and hold harmless, and upon request defend, Publisher and its parents, subsidiaries and affiliates, and each of their respective officers, directors, employees and authorized agents, from and against any and all third party claims, demands and inquiries and all associated loss, damage, liability, claim, encumbrance, deficiency, cost or expense resulting therefrom, including reasonable attorneys’ fees and costs, arising from and/or related to (i) the Advertising Materials, including without limitation, any asserted violation of any law, rule or regulation relating to cannabis- or hemp-based products or services, except to the extent solely arising from or relating to the Publisher Copyright Obligation, and/or (ii) Advertiser’s breach of Advertiser’s representations, warranties and obligations herein with respect to the Advertising Materials.  Upon request by Publisher, Advertiser shall have the right to direct and control the defense and settlement of any claim subject to its indemnification obligations hereunder, provided that Advertiser shall not agree to any settlement without the prior written consent of Publisher. 

Advertiser agrees that Publisher reserves the right to terminate any advertising subject to this agreement at any time for any reason, without notice to Advertiser. In such a case where Publisher terminates the publication or broadcast of an advertisement, Advertiser agrees it is not entitled to any refund or reimbursement of any kind and remains responsible in full for the contracted fee associated with such advertising. Advertiser is proceeding at its own risk.

This letter agreement constitutes the entire understanding of Publisher and Advertiser with respect to the subject matter hereof and supersedes any and all written or oral agreements, representation, or understandings including without limitation any insertion order between the parties. No oral or written statements or materials not specifically incorporated herein shall be of any legal force or effect. Advertiser agrees that the terms of this letter agreement are an amendment to the FSM Master Services Agreement entered into on or on behalf of Advertiser (the “FSM Terms”) and in the event of a conflict between the terms of this letter agreement and the FSM Terms, the terms of this letter agreement shall govern. No modification of this letter agreement will be effected by Publisher’s acceptance of any purchase order, shipping instruction forms or agreement to any other document containing terms and conditions at variance with or in addition to those in this letter agreement, all such varying or additional terms being deemed invalid except as reflected in a written agreement signed by the General Counsel or Chief Executive Officer of FlowerShop Media, Inc. expressly identifying this letter agreement and waiving the terms hereof.

This letter agreement shall be binding upon and enure to the benefit of each of Publisher and Advertiser and their respective successors, heirs and permitted assigns. This letter agreement shall be governed by and construed in accordance with the laws of State of Delaware and the state and federal courts of New York, New York will have jurisdiction to entertain any action arising under this letter agreement. The Parties each hereby accept jurisdiction of such courts and waive any objection to venue or any claim of inconvenient forum. This letter agreement may be executed and electronically delivered with electronically delivered signatures considered originals.