CLARIVOY MASTER SERVICES TERMS AND CONDITIONS

As a Customer of Clarivoy you will be asked to sign a Service Order and/or an Order Form that describes the services you have chosen and the related fees and terms. The Service Order and/or Order Form will incorporate the following terms and conditions (these “Terms”). The Service Order and/or Order Form, these Terms, and any supplement terms that may apply to specific features and products (collectively, the “Agreement”) constitute the entire agreement between Customer (“you” or “Customer”) and Clarivoy (collectively, the “Agreement”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, and communications, both written and oral. This Agreement takes effect as of the time you execute the Service Order and/or the Order Form (the “Effective Date”). 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 and/or Order Form (the “Services”) and you agree to pay for the Services and comply with the terms of this Agreement. Each Service Order or Order Form is incorporated into these Terms by reference. Any changes to the Services requested by you will require a separate Service Order or Order Form.

2. Changes.

2.1. Clarivoy may, in its sole discretion, 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.

2.2. 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 Services 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 username and password (“Login”) that are unique 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, not Clarivoy, is responsible for any misuse of Customer’s account, including misuse due to any lost or stolen Login credentials, and Customer shall promptly notify Clarivoy of any unauthorized access or use of User Interface.

(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 its 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. Primary Contact. Customer shall designate a member of its staff to serve as the primary 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 Services. 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 or Order Form (“Fees”). The price stated for the Services excludes all applicable taxes, levies, currency exchange settlements and similar assessments, unless stated otherwise. Customer is solely responsible for paying all sales, use, and excise taxes, and any other similar taxes, duties and 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 or Order Form, 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 after the date of the invoice therefor. 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 in writing (email being sufficient).

4.5. Late Payments. Late payments will be subject to late fees at the rate of 1.5% per month, calculated daily and compounded monthly 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, to:

(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 Services until Customer pays all overdue amounts, and the costs, if any, incurred by Clarivoy in collecting the undisputed past due fees (e.g., attorneys’ fees and collection costs).

5. Proprietary Rights.

5.1. Clarivoy Ownership Rights. Clarivoy retains all right, title, and interest in and to the Services, including without limitation:

(a) Its applications;

(b) The User Interface;

(c) Clarivoy’s selection, compilation, interpretation, analysis, processing, and presentation of data (including Customer Data, as defined in Section 5.3 and Customer’s use of the Services (the “Usage Data”) and its reports. Parties acknowledge that (i) Clarivoy expends significant resources in selecting, compiling, interpreting, analyzing, and processing Customer Data, (ii) by analyzing and processing Customer Data, Clarivoy creates new or derivative data that is sufficiently different from Customer Data; and that (iii) the new or derivative data is valuable property of Clarivoy. For clarification purposes, Clarivoy owns the attributed results for its averages and benchmarks and the average of metric categories and statistics;

(d) Its technology, algorithms, code, organization and structure of its data and databases used to provide the Services; 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, agents and subcontractors 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. Notwithstanding anything to the contrary, Parties agree that the Services, including without limitation its applications, databases, organization, design and structure of its databases and reports, shall be confidential and shall be deemed as 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 the Agreement. Clarivoy’s standard reporting will at a minimum include data and information dating back 13 months from the current month. Reports generated by the Services of advertising performance will be available on the User Interface for at least one (1) month after the conclusion of the Services (the “Grace Period”).

7. License.

7.1. License by Clarivoy. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and condition of the Agreement, Clarivoy grants Customer a revocable, 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 the benefit of Customer in the ordinary course of its internal business operations and use, including for the analysis and management of its measured advertising.

7.2. License by Customer. Customer grants Clarivoy a non-exclusive worldwide license to collect, use, interpret, analyze, and process Customer Data:

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

(b) To compile aggregate statistics and performance information for Clarivoy’s own business purposes, including but not limited to, improving its Services and assessing trends in online advertising and audience demographics;

(c) for its business research, white papers, presentations, industry benchmarks and other marketing purposes, provided that such data will be used in an anonymized and/or aggregate form only and will not reveal the identity of any individual or you as a source of such data. For the purposes of clarity, Clarivoy will not sell Customer Data.

8. Privacy.

8.1. Privacy Policy. It is Customer’s sole responsibility to post, and to 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 for advertising measurement;

(b) Customer works with a third party for any targeted advertising delivery;

(c) 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

(d) Options available to a consumer.

8.2. Privacy Terms. At Customer’s request, Clarivoy may provide suggested language for such disclosure, but it is Customer’s sole responsibility to ensure that its privacy policy is in compliance with the law.

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. Except as otherwise provided in the Service Order or Order Form, this Agreement shall commence on the Effective Date and, unless terminated earlier pursuant to the Agreement, shall expire in three (3) months (“Initial Term”). The Agreement will renew automatically for successive one-month 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 does not wish to renew 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) Customer is using the Services in a manner likely to damage the Services or Clarivoy’s reputation, in which case, the Agreement terminates upon Clarivoy’s written notice to Customer of its reasonable determination of such damage.

9.3. Duties upon Expiration or 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. Unless otherwise required by law, Clarivoy is not obligated to delete any Customer Data but will delete Customer Data upon Customer’s written request (email being sufficient).

9.4. Grace Period. Notwithstanding anything contrary above, the one-month Grace Period to access reports after the end of a Term as provided in Section 6.6 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 Service Order or 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 FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1 AND SECTION 10.4, 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 OR THE RESULTS THAT CUSTOMER MAY DERIVE FROM THE SERVICES WILL BE AVAILABLE AT ALL TIMES AND LOCATIONS.

10.4. Additional Customer Representations. Customer represents, warrants and covenants that Customer owns or otherwise has the necessary rights and consents in and relating to the Customer Data so that, as received and used by Clarivoy in accordance with the Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, privacy, or other rights of any third party or violate any applicable law.

11. Indemnification.

11.1. Clarivoy Indemnification and Customer Indemnification. Clarivoy agrees to indemnify, defend and hold harmless Customer and its managers, officers, directors, members, employees, agents, and permitted assigns and successors from and against any and all actual or threatened claims, actions, losses, damages, liabilities, costs and expenses, including without limitation reasonable attorneys’ fees and expenses, incurred by the Customer resulting from any action by a third party that Customer’s use of the Services in accordance with the Agreement infringes or misappropriates such third party’s U.S. intellectual property rights. Customer shall indemnify, defend and hold harmless Clarivoy and its managers, officers, directors, members, employees, agents, successors, assigns, and subcontractors from and against any and all actual or threatened claims, actions, losses, damages liabilities, costs and expenses, including without limitation reasonable attorneys’ fees and expenses, incurred by Clarivoy resulting from the following:

(a) Customer’s breach of any representation, warranty or obligation under this Agreement,

(b) Customer’s failure to comply with any applicable law or regulation;

(d) Customer’s use of Services or User Interface that is outside the purpose, scope or manner of use authorized by the Agreement, or in any manner contrary to Clarivoy’s instructions.

11.2. Indemnified Party’s Obligations. The Party seeking indemnification (the “Indemnitee”) will promptly notify the other Party (the “Indemnitor”) of the claim and cooperate with the Indemnitor in defending the claim at Indemnitor’s sole cost and expense. The Indemnitor has full control and authority over the defense, except that:

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

(b) Indemnitee 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, in its sole discretion:

(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, SUBCONTRACTORS AND REPRESENTATIVES HAVE LIABILITY TO 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 CLARIVOY’S OBLIGATION TO INDEMNIFY THE OTHER, in no event shall clarivoy’s aggregate LIABILITY TO THE customer arising out of the agreement 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 indirectly 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 Services.

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. Either Party may publicly disclose, issue any press release, or otherwise communicate with the media regarding the existence of this Agreement or the subject matter hereof. Each Party shall have the right to use the other Party’s name and logo in general marketing materials related to the Services.

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 and/or Order Form. In the event of any consistency between these Terms and a Service Order or Order Form, the Service Order or Order Form shall prevail.

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. These Terms are subject to change by Clarivoy at any time, in its sole discretion. Clarivoy will notify Customer of any changes of these Terms. Customer’s continued use of the Services for a period of 30 days after notification of change will constitute Customer’s acceptance of and agreement to such changes.

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. 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, then that provision will be deemed severed from the Agreement and will not affect the validity or enforceability of the remaining provisions of the Agreement.

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

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

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

14.15. 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.

14.16. 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.