In addition to what's described in the Terms and Conditions, publishers must abide by the following: Special Terms and Conditions These terms and conditions agreed as of [XXXXX], is entered into between Topcashback Inc an incorporated entity, located at 340 West Passaic Street, Rochelle Park, NJ 07662 (“Topcashback" or “Client”)), and the applicant ("Publisher"), together the "Parties", and each, a "Party". WHEREAS, Publisher is in the business of providing promotion and marketing services and has entered into an Agreement with Performance Horizon Group Limited under their Terms and Conditions (‘T&C’s’). WHEREAS, Topcashback wishes to engage the certain services of the Publisher as specified in accordance with the T&C’s (PHG to be exchanged with Topcashback) and these Special Terms and Conditions contained herein (the ‘Agreement’); NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Definitions. Capitalized terms have the meanings set forth or referred to in this Section. "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law, in equity or otherwise. “Bad Leads” shall mean a member who has signed up without the intent of using the Topcashback services or does not act like a majority of other members of the TopCashback site. "Confidential Information" has the meaning set forth in Section 5. "Disclosing Party" has the meaning set forth in Section 5. "Effective Date" means the date of this Agreement. Freebie” shall mean an offer in which allows a consumer to earn the monetary value of the product or purchase back at an equal or lesser value “IO” means the Insertion Order attached to these terms and conditions and any subsequent IO which for the avoidance of doubt shall be subject to these terms and conditions. "Intellectual Property" means any and all trade secrets, Trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any Person holds proprietary rights, title, interests or protections, however arising, pursuant to the Laws of any jurisdiction throughout the world, including all applications, registrations, renewals, issues, reissues, extensions, divisions and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing. "Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity. "Receiving Party" has the meaning set forth in Section 5. "Representatives" means employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors and permitted assigns. "Services" means the services described on the Invoice Order attached to this Agreement. "Topcashback Intellectual Property" means any Intellectual Property owned by or licensed to Publisher. “Valid Lead” or “Leads” means an individual that correctly and accurately filled out a signup form and meets all specified campaign criteria and which is tracked correctly [and validated] in the TopCashback system. "Trademarks" means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, corporate names and domain names, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world. 2. Services and Responsibilities. 2.1 Topcashback agrees to engage, and the Publisher agrees to provide the Services as specified on the attached IO in accordance with the terms of this Agreement. In the event of any conflict between the IO and these terms, these terms shall take precedence. The Publisher shall use the best efforts to provide the Services to Topcashback in accordance with the terms of this Agreement and at all times in a professional and diligent manner consistent with industry standards and good business practice, using efforts comparable to those customarily used in promotional campaigns of equivalent value and for similar products or services. 2.2 Topcashback will provide to the Publisher the advertisement (“Advertisement”). The Publisher is not permitted to alter or otherwise change the Advertisement without prior written approval from Topcashback. Topcashback shall ensure that Advertisements supplied to the Publisher comply with all applicable legislation. 2.3 Topcashback agrees to allow the Publisher to enter into any third-party contract, agreement or other commitment with any third-party publisher or sub affiliate of the Publisher’s choice (“a Third Party Publisher”) in relation to the Services PROVIDED THAT Topcashback pre approve any such Third Party Publisher prior to the Publisher entering into any such third party commitment relating to the Services and any such contract should be on the same terms and conditions herein. 2.4 Publisher agrees that Topcashback reserve the right to request the name of the publisher, website details, screenshots of the actual live promotion, and contact details for the relevant publisher at any time. 2.5 Where the Publisher has introduced new Leads and a majority of the; new Leads introduced have, during their first three months of membership, only purchased a Freebie or a single transaction, TopCashback reserve the right to withhold any and all Fees. 2.6 The Publisher shall appoint an employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of the Publisher in connection with this Agreement. 2.7 Publisher acknowledges that time is of the essence with respect to Publisher's obligations hereunder and that prompt and timely performance of all such obligations is strictly required. 2.8 Publisher shall not engage in any incentivization of any offer or incentive traffic, e.g., offer walls or cashback sites, without the prior written approval of the Topcashback Head of Legal. Intellectual Property Rights 3.1 Subject to and in accordance with the terms and conditions of this Agreement, Topcashback grants the Publisher and Permitted Third Party Providers a limited, non-exclusive, non-transferable, and non-sub licensable, USA license during the Term to use, solely in connection with the Services: (i) Client's Trademarks and logos and (ii) Client's domain names, website addresses, websites and URL's. 3.2 Topcashback grants no other right or license to any Retained Intellectual Property to Publisher by implication, estoppel or otherwise. Publisher acknowledges that Topcashback owns all right, title and interest in, to and under the Topcashback’s Trademarks and that Publisher shall not acquire any proprietary rights therein. Any use by Publisher or any Representative of Publisher of any of Topcashback's Trademarks and all goodwill associated therewith shall inure to the benefit of Topcashback. 3.3 The Parties agree that all intellectual property owned by Topcashback shall remain the property of Topcashback. Representations, Warranties and Certain Covenants. 4.1 Each Party represents, warrants, and covenants to the other that: it is a legal entity duly organized, validly existing and in good standing. it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement. it has the full right, corporate power, and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement. 5. Confidentiality 5.1 From time to time during the Term, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 5 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed pursuant to applicable Law. 5.2 The Receiving Party shall, for 12 months from receipt of such Confidential Information: (i) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any Person, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. 5.3 The Receiving Party shall be responsible for any breach of this Section 10 caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party's written request, the Receiving Party and its Representatives shall, return and or destroy all Confidential Information and copies thereof that it has received under this Agreement. 6. Limitation of Liability 6.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES EXCEPT WITH RESPECT TO THE PARTIES' LIABILITY FOR BREACH OF CONFIDENTIALITY OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, TOPCASHBACK SHALL NOT BE LIABLE TO THE PUBLISHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6.2 MAXIMUM LIABILITY. TOPCASHBACK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO PUBLISHER PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $200,000 WHICHEVER BE THE LESSER. 7. Term and Termination 7.1 This Agreement commences on the Effective Date and continues for the Term, unless it is earlier terminated in accordance with this Agreement (the "Term"). 8 General 8.1 For the avoidance of doubt and save as provided in these Special Conditions: 8.1.1 should there be any conflict between the terms of these Special Conditions, and the terms of the T&C’s, then the terms of this Special Conditions shall prevail. 8.1.2 Neither party may assign, transfer, charge, or deal in any other manner with this Amendment or any of the rights under it, nor purport to do any of the same, nor sub-contract any or all their obligations under this Amendment without having obtained the prior written consent of the other party.
