CLARIVOY MASTER SERVICES TERMS AND CONDITIONS

CLARIVOY MASTER SERVICES TERMS AND CONDITIONS

As a Customer of Clarivoy you will be asked to sign a Service Order that describes the Services you have chosen and the related fees and terms. The Service Order will incorporate the following terms and conditions (the “Terms”). The Service Order, these Terms, and any supplement terms that may apply to specific features and products collectively constitute a contract between Customer (“you” or “Customer”) and Clarivoy (the “Agreement”). This Agreement takes effect as of the time you sign the Service Order. In these Terms, each party may be referred to as a “Party” and collectively as “Parties.”

1. Services. Clarivoy will provide the services as described in the applicable Service Order (“Services”) and you agree to pay for the Services and comply with the terms of this Agreement. Each Service Order is incorporated into these Terms by reference. Any changes to the Services requested by you will require a separate Service Order.

2. Changes.

(a) Clarivoy may make commercially reasonable changes to the Services from time to time. If Clarivoy makes a material change to the Services, Clarivoy will endeavor to provide at least thirty (30) days’ notice of the material changes.

(b) If the change has a material adverse impact on Customer, Customer will inform Clarivoy and Clarivoy will use reasonable efforts to provide a fix, and if Clarivoy is unable to do so, either Party may terminate the Agreement upon written notice without penalty. Customer shall remain liable for payment of service provided through the termination date.

3. Customer Obligations.

3.1. Use of the Services and User Interface. Customer shall access and use the Services and its user interface (“User Interface”) strictly in accordance with the guidelines provided by Clarivoy.

3.2. Login; Security.

(a) Clarivoy will provide Customer access to the User Interface through a unique user name and password (“Login”) that is individual to each member of Customer’s staff designated to have access. Therefore, Customer agrees it shall employ best practices to safeguard its Logins from loss, theft or misuse. Customer, and not Clarivoy, is responsible for any misuse of Customer’s account, even for any lost or stolen Login credentials.

(b) In no event may a Login be used by anyone other than the person to whom assigned.

3.3. Relations with Advertisers and Publishers. Customer solely is responsible for managing the relationships with Customer’s advertisers, clients and/or media properties.

3.4. Content Restrictions. Customer’s content, advertising and business practices, and Customer’s target site practices shall not be deceptive, pornographic, hate-promoting, misleading, obscene, defamatory or otherwise illegal. Customer agrees to indemnify Clarivoy for any breach or violation of this Subsection.

3.5. Technical Contact. Customer shall designate a member of its staff to serve as the technical contact to Clarivoy, with responsibility for addressing all technical matters under this Agreement.

3.6. Infrastructure. Customer shall be responsible for providing and maintaining all workstations, networks, and Internet connections necessary to access and use the Service. Clarivoy is not responsible for the quality and speed of Internet transmissions.

4. Pricing; Invoices; Payment Terms.

4.1. Fees. Customer agrees to pay the fees for the Services, including the optional features and services, as detailed in the applicable Service Order (“Fees”). The price stated for the Services excludes all applicable taxes and currency exchange settlements, unless stated otherwise. Customer is solely responsible for paying such taxes or other charges.

4.2. Payment. Customer agrees to provide a payment method to pay the charges for the Services. By providing Clarivoy with a payment method, Customer (i) represents that Customer is authorized to use the payment method that it provided and that any payment information is true and accurate; (ii) authorizes Clarivoy to charge Customer for the Services using Customer’s payment method; and (iii) authorizes Clarivoy to charge Customer for any Services ordered by Customer. As specified in the Service Order, Clarivoy may bill Customer (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Customer must pay any invoices within thirty (30) days. Customer agrees to keep its payment information up to date.

4.3. Payment on file. Customer may be given the option to use a convenience feature that retains payment information previously entered during a prior purchase from Clarivoy, which Clarivoy will use to process Customer’s order, and which Clarivoy will store in connection with Customer’s account.

4.4. Subscription. If Customer’s purchase is based on a monthly or other periodic subscription fee, Clarivoy will automatically charge the subscription fee plus any applicable taxes and fees each month or other pay period to your credit card or other payment method that Customer provides to Clarivoy. At the expiration of each subscription term, Clarivoy will automatically renew your subscription and charge the credit card or other payment method you have provided to us, unless you cancel your subscription. Your subscriptions will automatically renew at the then-current price plus any applicable taxes and fees, excluding promotional and discount pricing. Customer can cancel a subscription service by contacting Clarivoy.

4.5. Late Payments. Late payments will be subject to late fees at the rate of 1.0% per month, or if lower, the maximum rate allowed by law.

4.6. Dispute. Customer is deemed to have waived any objection to an invoice unless Customer notifies Clarivoy in writing of an objection to an invoice within ten (10) business days following Customer’s receipt of the invoice at issue. Customer remains obligated to pay all undisputed amounts when due.

4.7. Non-Payment. If Customer fails to pay undisputed fees invoiced by Clarivoy within two (2) months following the payment due date, Clarivoy shall have the option, without prior notice or warning:

(a) Terminate this Agreement; or

(b) Deactivate Customer’s access to the User Interface; or

In the case of (b) and (c), Clarivoy will not restore service until Customer pays all overdue amounts, and the costs, if any, incurred by Clarivoy in collecting the undisputed past due fees (e.g., attorney’s fees and collection costs).

5. Proprietary Rights.

5.1. Clarivoy Ownership Rights. Clarivoy retains all rights in and to the Service, including without limitation:

(a) Its applications;

(b) The User Interface,

(d) Its technology, algorithms, code, organization and structure of its data and databases used to provide the Service; and

(e) The look and feel of its reports and Web sites.

5.2. Limitations. Customer has no rights in or to the Services or User Interface beyond the limited rights of access and use contemplated by this Agreement.

5.3. Customer Ownership Rights. Customer retains all rights in and to any raw data or other information or materials it provides to Clarivoy (“Customer Data”) and its own technologies, know how, content and media assets.

6. Confidentiality.

6.1. Duty. Each party will:

(a) Protect the other party's Confidential Information with the same standard of care it uses to protect its own Confidential Information; and

(b) Not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential.

6.2. Use of Confidential Information. Each Party (and any affiliates' employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each Party is responsible for any actions of its Affiliates' employees and agents in violation of this Section.

6.3. “Confidential Information” means information disclosed by a Party to the other Party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. The Service, including without limitation its applications, databases, organization, design and structure of its databases and reports, shall be Clarivoy’s Confidential Information.

6.4. Exclusions. Confidential Information does not include information that:

(a) The recipient of the Confidential Information already knew;

(b) Becomes public through no fault of the recipient;

(d) Was rightfully given to the recipient by another party.

6.5. Required Disclosure. Each Party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible:

(a) Uses commercially reasonable efforts to notify the other Party; and

(b) Gives the other Party the chance to challenge the disclosure.

6.6. Reports. Clarivoy will make its standard reporting available on the User Interface as described in a Service Order. Campaign-level reports generated by the Services of campaign performance will be available on the User Interface for at least one (1) month after the conclusion of a campaign’s flight (the “Grace Period”).

7. License.

7.1. License by Clarivoy. Clarivoy grants Customer during the Term a non-exclusive, non-transferable, non-sublicensable and non-assignable (except as is provided in Subsection 14.6) worldwide license during the Term to access and use the Services solely for Customer’s internal business use and for the analysis and management of its campaign projects.

7.2. License by Customer. Customer grants Clarivoy a non-exclusive worldwide license to use Customer Data:

(a) To fulfill Clarivoy’s obligations under this Agreement;

(b) To compile aggregate statistics for its own business purposes, such as, improving its Service, assessing trends in online advertising and audience demographics; and

(c) To retain, aggregate, use and relicense any statistics and information collected by Clarivoy for its business research, white papers, presentations and for marketing purposes, provided that such data may be used in aggregate form only and shall not reveal the identity of any individual or you as a source of such data.

8. Privacy.

8.1. Privacy Policy. Customer agrees that it will post, and it will require the target sites to feature an easy-to-understand privacy policy with a link from the target site’s home page that contains the word “Privacy”, which shall clearly disclose that:

(a) Customer works with a third party (i.e. Clarivoy) for any targeted advertising delivery;

(b) The information collected about a consumer’s visits to web sites may be used in order to provide advertisements about goods and services of interest to the consumer; and

8.2. Privacy Terms. At Customer’s request, Clarivoy shall provide suggested language for such disclosure.

8.3. Additional Requirements. Clarivoy may from time to time require Customer to provide specific additional notice mechanisms consistent with applicable laws or industry self-regulations for the purpose of providing end users with information and choices in connection with online advertising.

9. Term; Termination.

9.1. Term. This Agreement shall commence on the Effective Date and shall expire in twelve (12) months (“Initial Term”) and shall renew automatically for successive one-year terms (each, a “Renewal Term”) (together with the Initial Term, the “Term”) unless either party notifies the other in writing at least thirty (30) days before the end of the Initial Term or any Renewal Term that it wishes to terminate the Agreement. Such notice may be provided by email.

9.2. Termination. In addition to the other remedies provided in this Agreement, this Agreement shall terminate if:

(a) A party is in material breach and fails to cure within thirty (30) days following receipt of written notice from the non-breaching party; or

(b) Upon Clarivoy’s written notice to Customer of its reasonable determination that Customer is using the Services in a manner likely to damage the Services or Clarivoy’s reputation.

9.3. Duties upon Termination. On the date of expiration or termination of this Agreement (a) Customer’s access to the User Interface and Services will end and (b) Customer shall promptly pay all amounts due and still owing to Clarivoy.

9.4. Grace Period. Notwithstanding anything contrary above, the one-month Grace Period to access reports after the end of a campaign flight as provided in Section 7 will survive termination of this Agreement; provided, that the Grace Period does not apply in circumstances in which the Agreement terminates as a result of Customer’s material breach of this Agreement.

10. Representations and Warranties.

10.1. Mutual Warranties. Each party represents and warrants to the other that:

(a) It has the full power and authority to enter into this Agreement;

(b) The person signing the Order Form (whether in electronic or written form) has the authority to bind the Customer to this Agreement.

(c) Its execution, delivery and performance of this Agreement will not violate, conflict with, or result in a material default under any other contract or agreement to which such party is a party, or by which it is bound; and

(d) It shall comply with all applicable laws and regulations.

10.2. Disclaimers. EXCEPT AS PROVIDED ABOVE, EACH PARTY MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE.

10.3. Additional Disclaimer. IN ADDITION, CLARIVOY MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND THAT THE SERVICES WILL BE AVAILABLE AT ALL TIMES AND LOCATIONS OR THE RESULTS THAT CUSTOMER MAY DERIVE FROM THE SERVICES.

11. Indemnification.

11.1. Claims. Each Party agrees to indemnify, defend and hold harmless each other from and against any and all actual or threatened claims, actions, damages, liabilities, costs and expenses, including without limitation reasonable attorney's fees and expenses, arising out of or in connection with:

(a) The breach of any representation, warranty or obligation under this Agreement,

(b) The other Party's failure to comply with any applicable law or regulation; or

11.2. Indemnified Party’s Obligations. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party has full control and authority over the defense, except that:

(a) Any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party's prior written consent, such consent not to be unreasonably withheld or delayed; and

(b) The other Party may join in the defense with its own counsel at its own expense.

11.3. Replace, Repair or Modify. If Clarivoy reasonably believes the Services infringe a third party's intellectual property rights, then Clarivoy will:

(a) Obtain the right for Customer to continue using the Services;

(b) Provide a non-infringing functionally equivalent replacement; or

(d) Terminate the Services at no penalty to Customer.

This Subsection shall be Customer’s exclusive remedy against Clarivoy for an infringement claim.

11.4. Exception. Clarivoy has no obligation to provide any remedies under this Section if an infringement claim is based on the Customer’s or its end users’:

(a) Use of any Services after Clarivoy notifies Customer to discontinue its use;

(b) Combining the Services with a non-Clarivoy product, data or business process;

(d) Customer’s redistribution of the Services to a third party who is not authorized to use the Services under this Agreement.

12. Limitation of Liability.

12.1. Mutual Limitation. EXCEPT FOR A PARTY’S DUTY TO INDEMNITY THE OTHER, IN NO EVENT WILL EITHER PARTY, ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS AND REPRESENTATIVES HAVE LIABILITY THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES.

12.2. Additional Limitations.

(a) UNDER NO CIRCUMSTANCES SHALL Clarivoy BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSSES, COSTS OR DAMAGES (WHETHER DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY) INCURRED IN CONNECTION WITH THE AVAILABILITY, OPERATION OR USE OF ANY THIRD PARTY SERVICES OR THE ACTS OR OMISSIONS OF any THIRD PARTY PROVIDERS.

(b) Except for EACH PARTY’S obligation TO INDEMNIFY THE OTHER, one party’s liability to the other for all claims arising hereunder shall not exceed the total amount of Fees paid and payable by customer to Clarivoy during the Twelve (12) month period prior to the date the liability first arose.

13. Restrictions.

13.1. Customer Restrictions. Customer may not:

(a) Use the Services for commercial time-sharing, rental or service bureau use, or outsourcing for third parties;

(b) Directly or indirect through others access the Services to “scrape” or data mine Clarivoy’s applications, source code, computer servers or databases for the purpose of creating for Customer or any third party a searchable database or competitive product derived from Clarivoy’s system;

(d) Modify, prepare derivative works of, translate, reverse engineer, reverse compile, or disassemble the Service.

13.2. Mutual Obligation. Each Party shall not with knowledge:

(a) Transmit viruses, including, without limitation, codes, commands, or instructions designed to access, alter, delete, damage or disable the other Party’s computer information system and networks;

(b) Engage in unlawful or deceptive conduct;

(d) Access the other Party’s computer network, systems and databases without permission, including without limitation, using password spoofing.

14. General.

14.1. Publicity. The parties will make commercially reasonably efforts to issue a mutually agreeable press release concerning this relationship shortly after the execution of this Agreement. Each Party shall have the right to use the other Party’s name and logo in general marketing materials related to the Service.

14.2. Dispute Resolution. The Parties agree to resolve any disputes between them whenever possible by mutual and voluntary settlement rather than through any binding dispute resolution process.

14.3. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio.

14.4. Venue. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN FRANKLIN COUNTY, OHIO, UNITED STATES OF AMERICA.

14.5. Service Order. The terms of a Service Order shall prevail over any inconsistent terms with these Terms.

14.6. Assignment.

(a) Either Party upon notice to the other may assign its obligations under this Agreement in the event of a merger or acquisition of the Party or an acquisition of substantially all of such Party’s assets.

(b) Except as provided above, each Party may not assign any of its rights or delegate any of its obligations under this Agreement without the other Party’s written consent, which consent will not be unreasonably withheld.

(c) This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

14.7. Amendment. The Parties may modify this Agreement only in a writing signed and/or authenticated by each Party.

14.8. Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.

14.9. Notices. All notices required under this Agreement must be in writing and refer to the title and Effective Date of this Agreement and sent to the addresses provided above. Such writing may be provided in email form.

14.10. Independent Entities. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.

14.11. Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.

14.12. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control.

14.13. Complete Understanding. This Agreement is the Parties' entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.

14.14. Survival. The following sections will survive expiration or termination of this Agreement: Sections 5 to 9, and 11 to 14.

14.15. Counterparts. The Parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

14.16. Electronic Transactions. The Parties may present and sign this Agreement electronically, which shall have the same force and effect as an Agreement signed in writing.

14.17. Additional Remedies. Each Party acknowledges that a Party may suffer irreparable harm should a Party fail to abide by the terms this Agreement, such as, each Party’s confidentiality obligations or proprietary rights. Therefore, each Party agrees that a Party may, in addition to recovering legal damages, proceed in equity to obtain injunctive relief to enjoin violation of this Agreement.

15. COMPLETENESS. The Agreement is the complete and exclusive agreement between the Customer and Clarivoy regarding its subject matter and supersedes and replaces any prior agreement, understanding and communication, written or oral.