STANDARD TERMS

1. DEFINITIONS

1.1            Access Protocols” mean login information, passwords, security protocols, and Policies through which Authorized Users access the Services.  

1.2            Adgorithmics Account” means an account that Adgorithmics has with a Publisher, which account entitles Adgorithmics, on behalf of Advertiser, to purchase Advertising Inventory from such Publisher.

1.3             “Adgorithmics Technology” means the Services and the software, application programming interfaces, engines, tools and other technology underlying or relating to the implementation, operation and maintenance of the Services.

1.4            Advertiser Account” means an account that an Advertiser has with a Publisher that Advertiser uses to purchase Advertising Inventory from such Publisher.

1.5            Advertiser Content” means the artwork, copy, URLs linking to advertisements, or other content provided by or on behalf of Advertiser for delivery within the Advertising Inventory as well as any content linked to from any such materials.

1.6            Advertiser-Publisher Contract” means the agreement between Publisher and Advertiser that governs the relationship between Publisher and Advertiser regarding the purchase of Advertising Inventory.

1.7            Advertising Campaign” means an ad campaign managed, optimized, and/or analyzed by Advertiser using the Services.

1.8            Advertising Inventory” means: (a) any Publisher’s advertising ad units and /or (b) data or other materials purchased from a Publisher or a third party, each as purchased through the Services.

1.9            Authorized User” means each of the employees, agents and independent contractors of Advertiser who are provided Access Protocols by Advertiser (or by Adgorithmics at Advertiser’s request) to access and use the Services.

1.10         Fees” has the meaning given in Section 4. 

1.11         Insertion Order” means an insertion order agreed upon and executed by each of Advertiser and Adgorithmics that incorporates the terms of this Agreement, under which Adgorithmics will provide Services hereunder.

1.12         Intellectual Property Rights” means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under the Laws of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing. 

1.13         Laws” mean any national, federal, state, provincial, county, municipal or other local laws, rules, regulations, ordinances or judicial decisions enacted or issued by a court or other governmental authority of any country, state, province, county, city or other municipality whether currently enacted or to be enforced in the future.

1.14         Managed Service Offering” means the service offerings provided by Adgorithmics and selected by Advertiser for the management of certain Advertising Campaigns.

1.15         Policies” mean collectively, the applicable written (which includes both printed and electronic) rules, terms, conditions, requirements, technical standards and policies of Adgorithmics, as Adgorithmics may modify such policies from time-to-time, as are made available by Adgorithmics to Advertiser through the Services or other means. 

1.16         Privacy Best Practices” mean the commitments and undertakings by a party with respect to voluntary regimes relating to personally identifiable information and non-identifiable user profiles, including without limitation the Internet Advertising Bureau, Network Advertising Initiative, Direct Marketing Association, and Digital Advertising Alliance.

1.17         Publisher” means any entity that has agreed to make its Advertising Inventory available through the Services, including, if applicable, Facebook and YouTube.

1.18         Representative” means an entity acting on behalf of an Advertiser as further defined in Section 11.6 below.

1.19         Self-Service Offering” means the self service offerings provided by Adgorithmics and selected by Advertiser for the management of certain Advertising Campaigns.

1.20         Services” mean any services purchased by Advertiser or otherwise performed by Adgorithmics pursuant to this Agreement, including (a) the proprietary software-as-a-service offering that allows advertisers to build, manage and optimize advertising campaigns across multiple sources of Advertising Inventory and (b) the performance of any Managed Service Offering or Self-Service Offering, or any service identified in a separate statement of work in accordance with Section 2.1.

1.21         Term” shall mean the period of time during which this Agreement remains in effect pursuant to Section 5.1.

2. SERVICES

2.1            Provision of the Services.  Subject to the terms and conditions of this Agreement, Adgorithmics will make the Services available to Authorized Users. Certain additional services, including customized functions or features, may be agreed upon separately by the parties and reflected in an addendum to this Agreement and/or a statement of work.  Advertiser may request changes to the Services at any time. Changes must be requested in writing (email and other electronic communications shall suffice) with sufficient detail to enable Adgorithmics to assess the impact of the requested change on the cost, timing or any other aspect of the Services and the parties shall mutually execute a change order, it being understood that Adgorithmics shall be entitled to rely on change orders executed by any Advertiser employee or contractors.  In the absence of a mutually agreed written change order (email and other electronic acceptance shall suffice), Adgorithmics shall have the right to continue to perform the Services as originally agreed upon and contracted for, subject to and without limiting its other rights under this Agreement.

2.2            Access Grant; Access Protocols and Advertiser Restrictions.   Subject to the terms and conditions in this Agreement and the Policies, if any, Adgorithmics grants to Advertiser for the Term a non-exclusive, non-transferable, non-sublicensable right to allow Authorized Users to access the Services.  Advertiser will safeguard, and ensure that all Authorized Users safeguard, the Access Protocols and Advertiser will be responsible for all acts and omissions of Authorized Users. Advertiser will notify Adgorithmics immediately if it learns of any unauthorized use of any Access Protocols or any other known or suspected breach of security.  Advertiser will not: (a) adapt, alter, modify, improve, translate or create derivative works of the Services, (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Services, (c) provide access to the Services on behalf of any third party, including as part of a time-sharing, outsourcing or software-as-a-service offering, except as may be specifically provided herein or otherwise approved by Adgorithmics in writing, or (d) use the Services in any manner which adversely affects Adgorithmics or its customers, their data or security, or seek to access the data of any third party.  Without limiting the foregoing, under no circumstances will Advertiser use information derived from or relating to the Services to develop, cause to be developed, or assist in developing any platform and/or other product and/or service that is competitive with the Services.  Advertiser will require all Authorized Users to comply with these restrictions.  Without prejudice to any other right or remedy, Adgorithmics may immediately suspend Advertiser’s access to the Services or any portion thereof if Adgorithmics believes that Advertiser has failed to comply with this Section or is using the Services in a manner that violates any applicable Laws, or would otherwise damage Adgorithmics’ customers, business, or reputation.

2.3            License to Advertiser Content.  Advertiser grants Adgorithmics a worldwide, non-exclusive, royalty-free license during the Term to use, reproduce, distribute, display, store and perform the Advertiser Content solely in connection with the Services.  Except for the limited rights in the Advertiser Content granted to Adgorithmics herein, Advertiser reserves all right, title and interest in the Advertiser Content.

2.4            Ownership.  As between Advertiser and Adgorithmics, Advertiser owns all right, title and interest to the Advertising Content and Adgorithmics is the exclusive owner of all right, title and interest in and to the Services and Adgorithmics Technology.  Except for the limited rights in the Services and the Adgorithmics Technology granted to Advertiser herein, Adgorithmics reserves all right, title and interest in the Services and the Adgorithmics Technology.

3. ADGORITHMICS OFFERINGS

3.1            Self Service Offering; Advertiser Accounts.  Except as specifically agreed by the parties in writing, all Advertising Inventory purchased through the Services utilizing the Self Service Offering will be purchased by Advertiser through the applicable Advertiser Account pursuant to the terms of an Advertiser -Publisher Agreement.

3.2            Self-Service Offering; Adgorithmics Accounts. The following additional terms will apply to any Advertising Inventory purchased through an Adgorithmics Account.

3.2.1        Publisher Terms. Advertiser agrees to be bound by each Publisher’s standard terms and conditions applicable to advertisers, including the Publisher website/application terms of service, and all documents referenced or incorporated therein, including any policies and guidelines directed at advertisers (the “Publisher Standard Terms”).  For clarity, although Adgorithmics has provided links to certain Publisher Standard Terms below, it is expressly understood that it is Advertiser’s responsibility to ensure that it has reviewed and is in compliance with the most current versions of all applicable Publisher Standard Terms, regardless of whether the links below are current, complete or accessible.

3.2.2        Facebook Specific Terms. Without limiting the generality of Section 3.2.1, in the event Advertiser purchases Facebook specific Advertising Inventory through an Adgorithmics Account, Advertiser: (a) agrees to be bound by Facebook’s Statement of Rights and Responsibilities, currently located at http://www.facebook.com/legal/terms, as such terms may be updated by Facebook in its sole discretion, and all documents incorporated by reference into such terms; (b) will comply with all policies and guidelines disseminated by Facebook applicable to the Advertising Inventory including the Facebook Advertiser Guidelines, currently located at https://www.facebook.com/ad_guidelines.php as they may updated from time to time by Facebook, and the Lead Ad Terms, currently located at https://www.facebook.com/ads/leadgen/tos; and (c) acknowledge and agree that Facebook and/or Adgorithmics may limit or prohibit Advertiser from purchasing any Facebook specific Advertising Inventory at any time for any reason. 

3.2.3        YouTube Specific Terms. Without limiting the generality of Section 3.2.1, in the event Advertiser purchases YouTube specific Advertising Inventory through an Adgorithmics Account, Advertiser, (a) agrees to be bound by YouTube’s Terms of Service, currently located at https://www.youtube.com/t/terms, as such terms may be updated by YouTube in its sole discretion, and all documents incorporated by reference into such terms; (b) will comply with all policies and guidelines disseminated by YouTube applicable to the Advertising Inventory, and (c) acknowledge and agree that YouTube and/or Adgorithmics may limit or prohibit Advertiser from purchasing any YouTube specific Advertising Inventory at any time for any reason.

3.2.4        Adgorithmics’ Ability to Enforce the Publisher Standard Terms Against Advertiser.  The purpose of this Section 3.2 is to flow down any obligations undertaken by Adgorithmics to the Publisher pursuant to the Publisher Standard Terms, mutatis mutandis.  Accordingly, all obligations undertaken by Advertiser to the applicable Publisher pursuant to this Section 3.2 are also obligations to Adgorithmics, and Adgorithmics has the right to enforce such obligations as if Adgorithmics and Advertiser are parties to the Publisher Standard Terms, with Adgorithmics stepping into the shoes of the Publisher, and Advertiser stepping into the shoes of Adgorithmics.

3.2.5        Credit Check.  Advertiser will provide Adgorithmics with the information necessary to enable Adgorithmics to perform a credit check of Advertiser.  Adgorithmics may, in its sole discretion, extend, revise or revoke credit at any time. Adgorithmics is not obligated to enable the purchase of any Advertising Inventory in excess of any credit limit.

3.3            Managed Service Offering; In the event that Advertiser desires to utilize the Managed Service Offering, Advertiser and Adgorithmics must each execute and deliver an Insertion Order.  It is expressly understood that Adgorithmics reserves the right to refuse any Insertion Order for the Managed Service Offering and to discontinue the Managed Service Offering at any time.   Any Advertising Inventory purchased through the Services utilizing the Managed Service Offering may be purchased through an Adgorithmics Account or an Advertiser Account, as agreed upon by the parties. Any Inventory purchased through the Advertiser Account will be subject to the terms of an Advertiser – Publisher Agreement. Any Inventory purchased through an Adgorithmics account will be subject to the Publisher Standard Terms, as defined and further set forth insubsections 3.2.1-3.2.3 above, and will be subject to Adgorithmics’ rights to enforce the Publishers Standard Terms against the Advertiser, as detailed in subsection 3.2.4 above. In the event of conflict between any provision of the Insertion Order, this Agreement and the Publisher Standard Terms, the order of precedence to resolve the conflict will be this Agreement, the Publisher Standard Terms and the terms of the Insertion Order.

4. FEES AND PAYMENTS

4.1            Fees for Advertising Inventory

4.1.1        Fees for Advertising Inventory Purchased Through Advertiser Accounts.  For all Advertising Inventory purchased by Advertiser through the Services using Advertiser Accounts, Advertiser will pay the applicable fees for the Advertising Inventory (the “Media Spend”) directly to Publisher in accordance with the terms of the Advertiser-Publisher Contract.

4.1.2        Fees for Advertising Inventory Purchased Through Adgorithmics Accounts.  For all Advertising Inventory purchased by Advertiser through the Services using Adgorithmics Accounts, Advertiser will pay the applicable fees for the Advertising Inventory (also, the “Media Spend”) directly to Adgorithmics, who in turn will be responsible to remit such payments to the applicable Publisher.  All fees for Advertising Inventory purchased through Adgorithmics Accounts, will be considered Fees, as defined in Section 4.2 below, paid by Advertiser in accordance with Sections 4.2 and 4.3.

4.2            Fees and Payment.  In consideration for services rendered, Advertiser will pay to Adgorithmics the fees applicable to any Service as set forth in the applicable Insertion Order (the “Fees”).   Adgorithmics will invoice Advertiser for all applicable Fees in accordance with the schedule set forth in the applicable Insertion Order, or if no schedule is set forth in the Insertion Order, then, on a monthly basis.  All payments will be made in the currency specified in the Insertion Order unless otherwise agreed upon by the parties, it being understood that payment will be made in U.S. Dollars if no currency is specified.  Advertiser will pay all undisputed amounts within 30 days from receipt of invoice.  If any undisputed amount is more than 15 days past due, Adgorithmics will provide written notification to Advertiser, upon which time Advertiser will have 15 days to resolve the outstanding past due invoices.  In the event of any late payment hereunder, Adgorithmics shall be entitled to reimbursement of its collection costs, including attorney’s fees.

 

4.3            Taxes.  Advertiser will be responsible for, and will pay when due, all sales and use taxes, or any other taxes that might be in effect or declared, and similar charges based on or arising from this Agreement or its performance, other than taxes based on Adgorithmics’ net income.

 

4.4            Impression Counts; Variances.  Advertiser agrees that the usage statistics as tracked and measured in the Services are the definitive measurement for purposes of calculating Fees under this Agreement, including for counting impressions, clicks or other actions.  In the event of a discrepancy between Adgorithmics’ impression, click or action count greater than ten (10) percent from Advertiser’s third-party ad server, the parties will use commercially reasonable efforts to investigate and reconcile such discrepancy.  In the event that the parties are unable to reconcile the differences, the usage statistics as tracked and measured in the Services by Adgorithmics will be the definitive measurement for the purpose of calculating the Services Fees.

5. TERMS, TERMINATION AND SUSPENSION

5.1            Term.  Unless terminated earlier or extended in accordance with this Section 5.1 or 5.2, this Agreement will begin on the Effective Date and continue for a period of one (1) year thereafter. The Agreement will automatically renew for additional one (1)  month terms unless either party provides the other with notice of its intent not to renew this Agreement no less than thirty (30) days prior to the end of the then current term.  Either party may terminate this Agreement upon thirty (30) days written notice.  Advertiser may terminate any Advertising Campaign in accordance with the specific provisions of the Insertion Order or the termination provisions permitted through the Services for the applicable Advertising Campaign.

5.2            Termination.  Either party may terminate this Agreement or any Insertion Order, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within fifteen (15) days after receiving written notice.

5.3            Suspension of Service(s).  At any time during the Term, Adgorithmics may, immediately upon notice to Advertiser, suspend access to any Service or any Advertising Campaign for any reason including the following: (a) a threat to the technical security or technical integrity of the Services or (b) for any amount due under this Agreement that is not received by Adgorithmics when due.

5.4            Effect of Termination. Upon termination or expiration of this Agreement, Advertiser will cease use of the Services and all activities authorized by this Agreement and any sums due to Adgorithmics under this Agreement will be paid in accordance with the payment terms herein.  Notwithstanding the foregoing, in the event that any Advertising Campaigns were scheduled to extend beyond the termination date, such Advertising Campaigns will continue in accordance with their terms, subject to the terms and conditions of this Agreement, unless Adgorithmics has specified in writing that it will terminate the campaign as of the effective date of termination of this Agreement.  All provisions that by their nature should survive termination will survive termination including provisions regarding payment, confidentiality and indemnification obligations and all representations and warranties. 

6. REPRESENTATIONS, WARRANTIES AND COVENANTS; DISCLAIMER

6.1            Mutual Warranty.  Each party hereto represents, warrants and covenants to the other party that: (a) it has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by it, and the performance of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered by it, this Agreement will constitute a legal, valid and binding obligation, enforceable against it in accordance with the terms hereof.

6.2            By Adgorithmics.  Adgorithmics will perform the Services in a professional and workmanlike manner in accordance with industry standards.  In the event of a breach of this warranty, Advertiser’s sole and exclusive remedy will be to receive the provision of makegood Services from Adgorithmics, if applicable.

6.3            DISCLAIMER.  EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” ADGORITHMICS SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, DATA ACCURACY, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. ADGORITHMICS DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE.  ADVERTISER FURTHER ACKNOWLEDGES THAT ADGORITHMICS HAS NO CONTROL OVER INFORMATION AND MATERIALS ONCE THEY HAVE BEEN PUBLISHED, RELEASED OR POSTED IN THE PUBLIC DOMAIN.  AS SUCH, ADGORITHMICS SHALL NOT BE RESPONSIBLE FOR ENSURING THE CONTENT OR ACCURACY OF WHAT ANY THIRD PARTY PUBLISHES OR FOR ANY OTHER THIRD PARTY ACTIONS OR TECHNOLOGY OR FOR ANY DATA THAT ADVERTISER OBTAINS FROM A THIRD PARTY EVEN IF SUCH DATA IS OBTAINED THROUGH OR IN CONNECTION WITH THE SERVICES.  ADVERTISER AGREES THAT IT WILL NOT HOLD ADGORITHMICS RESPONSIBLE FOR ANY ACTS, ERRORS, OR OMISSIONS BY ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITH RESPECT TO CLICKS ON OR OTHER ACTIONS TAKEN BY ANY THIRD PARTY WITH RESPECT TO THE ADVERTISER CONTENT OR ADVERTISING CAMPAIGNS HEREUNDER, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.  WITHOUT LIMITING THE FOREGOING, ADGORITHMICS WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS IN ANY ADVERTISER CONTENT; (B) UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR ADGORITHMICS TECHNOLOGY; (C) INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICES OR ADGORITHMICS TECHNOLOGY; OR (D) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SERVICES OR ADGORITHMICS TECHNOLOGY BY ANY THIRD PARTY. 

7. PRIVACY AND DATA

7.1            Privacy.  Each party will comply will all applicable Laws and Privacy Best Practices in its performance of this Agreement or in the exercise of its rights hereunder, including with respect to any Advertising Campaign. Advertiser will reasonably cooperate with Adgorithmics’ specific requests as necessary to facilitate Adgorithmics’ compliance with the preceding sentence.  It is expressly understood that Adgorithmics is not responsible for any Publisher or other third party compliance or non-compliance with applicable Laws or Privacy Best Practices, including any non-compliance caused by technology provided by Publishers or third parties.

7.2            Data Collection and Reporting.  In connection with the Advertiser’s Advertising Campaigns, Adgorithmics may collect and maintain information about users and other data (“Collected Data”), which may include, without limitation: business information including but not limited to the number and content of advertisements, and number of clicks, interactions (including without limitation roll-overs), click-throughs and page impressions per ad.  As between Advertiser and Adgorithmics, Advertiser has the sole and exclusive ownership, interest and title in and to all Collected Data that specifically relates to its Advertising Campaigns. Advertiser hereby grants to Adgorithmics a limited, royalty-free, worldwide, perpetual license to use the Collected Data (i) for the purpose of providing and improving its services to its customers and (ii) to use, create and compile aggregated or anonymized data and/or statistics.

8. CONFIDENTIALITY

8.1              Definition. Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose to it information of a confidential nature including, without limitation, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that are: (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) based on the circumstances of the disclosure should reasonably be considered confidential regardless of whether such information is marked as “confidential” or with a similar designation (“Confidential Information”).  

8.2            Restricted Use and Protection. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance.  Each party will use at least the same level of care to maintain the Confidential Information of the other party as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care.

8.3            Exceptions. The foregoing obligations will not extend to any information to the extent that the Receiving Party can demonstrate that such information: (a) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (b) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality; (c) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto; or (d) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information.  In addition, nothing herein shall be deemed to prohibit Adgorithmics from listing Advertiser as a customer in its publicity materials, it being agreed that Adgorithmics shall have the right to do so.

8.4            Disclosures Required by Laws. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Receiving Party will promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information.

9. IDEMNIFICATION

9.1            Adgorithmics Indemnity.

9.1.1        Adgorithmics will indemnify, defend and hold Advertiser, and each of its respective directors, officers, employees and representatives (each a “Advertiser Indemnified Party”), harmless from and against any and all damages, liabilities, costs, charges and expenses, including reasonable and related attorneys’ fees and costs (collectively “Losses”) resulting from any third party claim alleging that the Services or Adgorithmics Technology directly infringes any valid U.S. patent or copyright.

9.1.2        Section 9.1.1 will not apply to the extent that the alleged claim arises, in whole or in part, from (a) a breach of this Agreement by Advertiser or any Authorized User, including any use or modification of the Services, the Adgorithmics Technologyand/or any services in a manner outside the scope of any right granted,  (b) a combination, operation or use of the Services or the Adgorithmics Technology with other software, hardware or technology not provided by Adgorithmics if the claim would not have arisen but for the combination, operation or use, (c) the Advertising Content or (d) any technology or materials supplied by Publisher, including Facebook and YouTube.  Any of the foregoing circumstances under clauses (a), (b) and (c) will be collectively referred to as an “Advertiser Indemnity Responsibility”).

9.2            Advertiser Indemnity. Advertiser will indemnify, defend and hold harmless Adgorithmics, its directors, officers, employees and representatives (each an “Adgorithmics’ Indemnified Party”), from and against any and all Losses: (a) arising out of a breach or alleged breach of Advertiser’s representations, warranties or obligations set forth in this Agreement; (b) the content or subject matter of any Advertiser Content; or (c) resulting from any third party claim in respect of any Advertiser Indemnity Responsibility.

9.3            Indemnification Process and Conditions. The party seeking indemnification under Section 9.1-9.2, as the case may be (the “Indemnified Party”), will give prompt written notice to the other party (the “Indemnifying Party”).  In addition, the Indemnifying Party will, at its expense, assume control of the defense and settlement of any such claim, with counsel of the Indemnifying Party's choosing, and the Indemnified Party will provide the Indemnifying Party, at the Indemnifying Party's expense, with information and assistance that is reasonably necessary for the defense and settlement of the claim.  The Indemnified Party reserves the right to retain counsel, at the Indemnified Party's sole expense, to participate in the defense of any such claim.  The Indemnifying Party will not settle any such claim or alleged claim without first obtaining the Indemnified Party's prior written consent, which consent will not be unreasonably withheld, if the terms of such settlement would adversely affect the Indemnified Party's rights under this Agreement.

9.4            Infringement Remedy.  If the Services or Adgorithmics Technology becomes, or in Adgorithmics’ reasonable opinion, is likely to become the subject of any infringement-related claim, then Adgorithmics will, at its expense and in its discretion: (a) procure for Advertiser the right to continue using the Services, the Adgorithmics Technology, or the applicable deliverable; (b) replace or modify the infringing technology or material so that offensive material becomes non-infringing and remains materially functionally equivalent; or (c) terminate the Insertion Order(s) pursuant to which the Service is provided and give Advertiser a refund for any pre-paid but unused fees.

9.5            THE PROVISIONS OF THIS SECTION 9 STATE ADGORITHMICS’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE Adgorithmics Technology OR ANY DELIVERABLE INFRINGES A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.

10. LIMITATIONS OF LIABILITY

EXCEPT FOR ITS INDEMNITY OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ADGORITHMICS’ LIABILITY FOR ANY CLAIM ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT (WHEN AGGREGATED WITH ITS LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT) EXCEED THE FEES PAID HEREUNDER (NOT INCLUDING MEDIA FEES) BY ADVERTISER AND RETAINED BY ADGORITHMICS, IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE LIABILITY FIRST AROSE.

11. GENERAL

11.1         Independent Contractors.  It is the intention of Adgorithmics and Advertiser that Adgorithmics and Advertiser are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating (a) any partnership, joint venture, employment, fiduciary or other similar relationship between Adgorithmics and Advertiser or (b) any right of either party to enter into any agreement or commitment binding on the other party; provided that, notwithstanding the foregoing, Advertiser agrees that Adgorithmics has the right (but not the obligation) to buy media and related services as Advertiser’s agent.

11.2         Beta Features.  Certain Services and Adgorithmics Technology may be denoted as “Beta Features.”  In consideration for receiving Beta Features for testing, Advertiser agrees to serve as a "Beta Site" for the Beta Features and will notify Adgorithmics of all problems and ideas for enhancements or improvements (“Enhancements”) which come to Advertiser's attention while testing Beta Features, and hereby assigns to Adgorithmics all right, title and interest to such Enhancements and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other Intellectual Property Rights. Advertiser hereby waives and shall cause the Authorized Users to waive all moral rights in connection with the Enhancements to the fullest extent permissible under applicable law.  Beta Features are prerelease products that are not at the level of performance or compatibility of a final, generally available product offering. Beta Features may not operate correctly and may be substantially modified prior to first commercial deployment, or withdrawn. Beta Features are provided "AS IS" without warranty or indemnity of any kind. Advertiser understands that Adgorithmics reserves the right to include specific usage limitations and restrictions relating to the Beta Features at the time the Beta Feature is provided and Advertiser agrees to comply with such limitations and restrictions.  In connection with its testing of the Beta Features, Advertiser agrees to provide material, statistics, or information that is not deemed confidential to its business for use in press releases, customer testimonials, and as a reference in marketing and sales initiatives by Adgorithmics and will also provide a quote that may be used in a press release.  For clarity, all information concerning the nature, use or characteristics of the Beta Features shall be deemed Confidential Information of Adgorithmics.  The entire risk arising out of the use or performance of Beta Features remains with Advertiser. In no event shall Adgorithmics be liable for any damages or liability whatsoever arising out of the use of or inability to use Beta Features, even if Adgorithmics has been advised of the possibility of such damages or liability.

11.3         Notice. All notices under this Agreement will be given in writing and will be deemed given when personally delivered, when sent by confirmed fax, or three (3) days after being sent by prepaid certified or registered mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice given in accordance with this Section 11.3.  All notices to Adgorithmics will be addressed to the attention of the Chief Financial Officer (or such other person as may be designated by Adgorithmics upon notice given in accordance with this Section 11.3).

11.4         Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of New York without regard to any conflict of law principles.

11.5         Arbitration.   Any and all claims, disputed, or controversies of whatever nature arising out of or relating to this Agreement (a “Claim”) shall be resolved by final and binding arbitration before a single arbitrator (“Arbitrator”) selected from and administered by the New York office of the American Arbitration Association in accordance with its then existing commercial arbitration rules and procedures.  The arbitration shall be held in the New York, New York.  In accordance with the Federal Rules of Civil Procedure, depositions may be taken and full discovery may be obtained in any arbitration commenced under this provision.  The Arbitrator shall, within fifteen (15) calendar days after the conclusion of the arbitration hearing, issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The Arbitrator shall be authorized to award compensatory damages and injunctive relief, but shall not be authorized (i) to award non-economic damages, such as for emotional distress, pain and suffering or loss of consortium, (ii) to award punitive damages, or (iii) to reform, modify or materially change this Agreement or any other agreements contemplated hereunder.  Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator.  By agreeing to this binding arbitration provision, the parties understand that they are waiving certain rights and protections which may otherwise be available if a Claim between the parties were determined by litigation in court, including, without limitation, the right to a jury trial.  Notwithstanding any of the foregoing, either party may seek and obtain an injunction or other appropriate relief from the Federal courts or State courts located in New York, New York, to preserve the status quo with respect to any matter pending conclusion of the arbitration, but no such application to a court of law or equity shall in any way be permitted to stay or otherwise impede the progress of the arbitration.

11.6         Representatives.  If the party executing this Agreement is an advertising agency, search engine marketer, reseller, or other entity representing Advertisers (“Representative”), this Section applies.  Representative and each Advertiser will be jointly and severally liable for all payment obligations and other obligations hereunder (unless Representative has expressly indicated that it is acting as principal in the Insertion Order). Adgorithmics shall have no responsibility or liability to Representative whatsoever unless Representative is acting as a principal. Representative acknowledges that Adgorithmics may directly contact any Advertiser represented by Representative, including if Adgorithmics has not received payment for such Advertiser’s account when due.  Should Representative enter into an Insertion Order or obtain Services for its own benefit and/or as principal, this Agreement will govern and the Representative will be deemed the “Advertiser” in those instances. Representative agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.   Upon request, Representative will make available written confirmation of the relationship between Representative and Advertiser.  When acting as agent, this confirmation should include, for example, Advertiser’s acknowledgement that Representative is its agent and is authorized to act on its behalf in connection with the Insertion Order and this Agreement.  In addition, upon the request, Representative will confirm whether Advertiser has paid to Representative in advance funds sufficient to make payments pursuant to the Insertion Order.  If Representative is acting as agent, Representative represents and warrants that (i) it has the authority as Advertiser’s agent to bind Advertiser to this Agreement and each Insertion Order, (ii) that all of Representative’s actions hereunder and under each Insertion Order will be within the scope of such agency, and (iii) by Representative executing an Insertion Order or otherwise enrolling an Advertiser to receive any Services, the Advertiser is also entering into the Agreement.   Representative will defend, indemnify, and hold harmless Adgorithmics from Losses (as defined above) and any all other costs and expenses resulting from (i) Representative’s alleged breach of the foregoing sentence, or (ii) claims arising from or relating to its breach, or its acts or omissions that result in a breach, of any obligations under this Agreement. 

11.7         Amendment and Waiver.  Except as otherwise provided herein, no amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties.  The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default. No terms, provisions or conditions of any purchase order, invoice, acknowledgment, click-through agreement or other business form that Advertiser may use or any handwritten changes by Advertiser will serve to alter or have any effect on the terms of this Agreement, notwithstanding any apparent acceptance thereof by Adgorithmics. 

11.8         Assignment.  This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning party; provided that either party may assign this Agreement to any entity that acquires, merges with or otherwise purchases all or substantially all its assets without such consent.  This Agreement will be binding upon and will inure to the benefit of the parties’ permitted successors and assigns.

 

11.9         Force Majeure.  Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, acts of God, or outages caused by the failure of public network or communications components.

11.10       Entire Agreement. This Agreement, including any Exhibits and any Insertion Order, constitutes the complete and exclusive understanding and agreement between the parties regarding the subject matter of this Agreement and supersedes all prior or contemporaneous agreements or understandings relating to their subject matter.  In the event of any conflict between the foregoing terms of this Agreement and the terms of any Insertion Order, the foregoing terms of this Agreement shall govern.

11.11       Severability.  Each provision of this Agreement will be viewed as separate and distinct, and in the event that any provision will be deemed by an arbitrator or a court of competent jurisdiction to be illegal, invalid or unenforceable, the court or arbitrator finding such illegality, invalidity or unenforceability will modify or reform this Agreement to give as much effect as possible to such provision.  Any provision which cannot be so modified or reformed will be deleted and the remaining provisions of this Agreement will continue in full force and effect.

11.12       Headings; Counterparts.  Headings are for convenience only and are not deemed to be part of this Agreement.  This Agreement may be entered into in separate counterparts, each of which when so executed will be deemed an original and taken together will constitute one fully executed Agreement.  Facsimile and pdf signatures will be acceptable and binding.